UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 19, 2011
MARINEMAX, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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1-14173
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59-3496957
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(State or other jurisdiction
of incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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18167 U.S. Highway 19 North, Suite 300
Clearwater, Florida
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33764
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone number, including area code:
(727) 531-1700
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01. Entry into a Material Definitive Agreement.
Reference is made to Item 5.02 of this Current Report on Form 8-K regarding the approval of
the 2011 Plan. The disclosure contained in Item 5.02 and the information contained in Exhibits
10.29(a), 10.29(b), and 10.29(c) attached hereto are hereby incorporated by reference in their
entirety into this Item 1.01.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers.
At the Annual Meeting of Stockholders held on January 19, 2011, our stockholders approved the
2011 Stock-Based Compensation Plan (the 2011 Plan). The full text of the 2011 Plan is included
as Exhibit 10.29(a) to this Form 8-K, and the form option agreement and restricted stock unit award
agreement are included as Exhibits 10.29(b) and 10.29(c),
respectively, to this
Form 8-K
and are
hereby incorporated by reference in their entirety into this Item 5.02. The material features of
the 2011 Plan are set forth below.
Purpose
The 2011 Plan is designed to attract, motivate, retain, and reward our executives, employees,
officers, directors, and independent contractors by providing such persons with annual and
long-term performance incentives to expend their maximum efforts in the creation of stockholder
value.
Awards
The terms of the 2011 Plan provide for the grant of stock options, stock appreciation rights,
restricted stock, stock units, bonus stock, dividend equivalents, other stock related awards, and
performance awards that may be settled in cash, stock, or other property.
Shares available for awards
The total number of shares of our common stock that may be subject to awards under the 2011
Plan is equal to 1,000,000 shares, plus (i) any shares available for issuance and not subject to an
award under the 2007 Incentive Stock Plan (the 2007 Plan), (ii) the number of shares with respect
to which awards granted under the 2011 Plan and the 2007 Plan terminate without the issuance of the
shares or where the shares are forfeited or repurchased; (iii) with respect to awards granted under
the 2011 Plan and the 2007 Plan, the number of shares which are not issued as a result of the award
being settled for cash or otherwise not issued in connection with the exercise or payment of the
award; and (iv) the number of shares that are surrendered or withheld in payment of the exercise
price of any award or any tax withholding requirements in connection with any award granted under
the 2011 Plan and the 2007 Plan.
Limitations on awards
The 2011 Plan imposes individual limitations on certain awards, in part to comply with Section
162(m) of the Internal Revenue Code of 1986. Under these limitations, no more than 50% of the
total number of shares of our common stock reserved for issuance under the 2011 Plan may be granted
to an individual during any fiscal year pursuant to awards granted under the
2011 Plan. The maximum amount that may be payable to any one participant as a performance
award (payable in cash) is $5,000,000 per calendar year.
1
No outstanding options may be repriced without stockholder approval (that is, we cannot amend
an outstanding option to lower the exercise price or exchange an outstanding option for a new
option with a lower exercise price). In addition, the 2011 Plan prohibits us from exchanging an
outstanding option with an exercise above the then current fair market value of our common stock
for cash, other awards, or other property.
Capitalization adjustments
In the event that a stock dividend, forward or reverse split, merger, consolidation,
combination, or other similar corporate transaction or event affects our common stock, then the
plan administrator will substitute, exchange, or adjust any or all of the following in a manner
that precludes the enlargement or dilution of rights and benefits: (1) the kind and number of
shares available under the 2011 Plan, (2) the kind and number of shares subject to limitations on
awards described in the preceding paragraph, (3) the kind and number of shares subject to all
outstanding awards, (4) the exercise price, grant price, or purchase price relating to any award,
and (5) any other affected terms of awards.
In the event that a dividend or other distribution (whether in cash or other property, but
excluding a stock dividend), recapitalization, reorganization, spin-off, repurchase, share
exchange, liquidation, dissolution, or other similar corporate transaction or event affects our
common stock or our other securities or the securities of any other issuer, so that an adjustment,
substitution, or exchange is determined to be appropriate by the plan administrator, then the plan
administrator is authorized to adjust any or all of the following as the plan administrator deems
appropriate: (1) the kind and number of shares available under the 2011 Plan, (2) the kind and
number of shares subject to limitations on awards described in the preceding paragraph, (3) the
kind and number of shares subject to all outstanding awards, (4) the exercise price, grant price,
or purchase price relating to any award, and (5) any other affected terms of awards.
Eligibility
The persons eligible to receive awards under the 2011 Plan consist of officers, directors,
employees, and independent contractors. However, incentive stock options may be granted under the
2011 Plan only to our employees, including our officers who are employees.
Administration
Our board of directors will administer the 2011 Plan unless it delegates administration of the
2011 Plan to one or more committees of our board of directors. Together, our board of directors
and any committee(s) delegated to administer the 2011 Plan are referred to as the plan
administrator. If a committee is delegated to administer the 2011 Plan, then the committee members
may be non-employee directors as defined by Rule 16b-3 of the Securities Exchange Act, outside
directors for purposes of Section 162(m), and independent as defined by the New York Stock
Exchange or any other national securities exchange on which any of our securities may be listed for
trading in the future. Subject to the terms of the 2011 Plan, the plan administrator is authorized
to select eligible persons to receive awards, determine the type and number of awards to be granted
and the number of shares of our common stock to which awards
will relate, specify times at which awards will be exercisable or may be settled (including
performance conditions that may be required as a condition thereof), set other terms and conditions
of awards, prescribe forms of award agreements, interpret and specify rules and regulations
relating to the 2011 Plan, and make all other determinations that may be necessary or advisable for
the administration of the 2011 Plan. The plan administrator may amend the terms of outstanding
awards, in its discretion. Any amendment that adversely affects the rights of the award recipient,
however, must receive the approval of such recipient.
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Stock options and stock appreciation rights
The plan administrator is authorized to grant stock options, including both incentive stock
options and non-qualified stock options. In addition, the plan administrator is authorized to
grant stock appreciation rights, which entitle the participant to receive the appreciation of our
common stock between the grant date and the exercise date of the stock appreciation right. The
plan administrator determines the exercise price per share subject to an option and the grant price
of a stock appreciation right; however, the per share exercise price of an option or stock
appreciation right must not be less than the fair market value of a share of common stock on the
grant date. The plan administrator generally will fix the maximum term of each option or stock
appreciation right, the times at which each stock option or stock appreciation right will be
exercisable, and provisions requiring forfeiture of unexercised stock options or stock appreciation
rights at or following termination of employment or service, except that no incentive stock option
may have a term exceeding ten years. Stock options may be exercised by payment of the exercise
price in any form of legal consideration specified by the plan administrator, including cash,
shares (including cancellation of a portion of the shares subject to the award), outstanding
awards, or other property having a fair market value equal to the exercise price. Options may also
be exercisable in connection with a broker-assisted sales transaction (a cashless exercise) as
determined by the plan administrator. The plan administrator determines methods of exercise and
settlement and other terms of the stock appreciation rights.
Restricted Stock and Stock Units
The plan administrator is authorized to grant restricted stock and stock units. Restricted
stock is a grant of shares of common stock, which may not be sold or disposed of and which may be
forfeited in the event of certain terminations of employment or service prior to the end of a
restricted period specified by the plan administrator. A participant granted restricted stock
generally has all of the rights of one of our stockholders, unless otherwise determined by the plan
administrator. An award of a stock unit confers upon a participant the right to receive shares of
common stock at the end of a specified period and may be subject to possible forfeiture of the
award in the event of certain terminations of employment prior to the end of a specified period.
Prior to settlement, an award of a stock unit carries no voting or dividend rights or other rights
associated with share ownership, although dividend equivalents may be granted, as discussed below.
The plan administrator determines all of the terms of the restricted stock and stock units awards
subject to the terms of the 2011 Plan.
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Dividend Equivalents
The plan administrator is authorized to grant dividend equivalents conferring on participants
the right to receive, currently or on a deferred basis, cash, shares of common stock,
other awards, or other property equal in value to dividends paid on a specific number of
shares of common stock or other periodic payments. Dividend equivalents may be granted alone or in
connection with another award, may be paid currently or on a deferred basis and, if deferred, may
be deemed to have been reinvested in additional shares of common stock, awards or otherwise as
specified by the plan administrator. Currently, there are no outstanding dividend equivalent
awards, either with other outstanding awards under any of our incentive compensation plans or as
stand alone awards. The plan administrator determines all of the terms of the dividend equivalent
awards subject to the terms of the 2011 Plan.
Bonus Stock and Awards in Lieu of Cash Obligations
The plan administrator is authorized to grant shares of common stock as a bonus free of
restrictions for services performed for us or to grant shares of common stock or other awards in
lieu of our obligations to pay cash under the 2011 Plan or other plans or compensatory
arrangements, subject to such terms as the plan administrator may specify.
Other Stock Based Awards
The plan administrator is authorized to grant awards under the 2011 Plan that are denominated
or payable in, valued by reference to, or otherwise based on or related to shares of common stock.
Such awards might include convertible or exchangeable debt securities, other rights convertible or
exchangeable into shares of common stock, purchase rights for shares of common stock, awards with
value and payment contingent upon our performance or any other factors designated by the plan
administrator, and awards valued by reference to the book value of shares of our common stock or
the value of securities of or the performance of specified subsidiaries or business units. The
plan administrator determines the terms and conditions of such awards.
Performance Awards
The right of a participant to exercise or receive a grant or settlement of an award, and the
timing thereof, may be subject to such performance conditions, including subjective individual
goals, as may be specified by the plan administrator. In addition, the 2011 Plan authorizes
specific performance awards, which represent a conditional right to receive cash, shares of our
common stock, or other awards upon achievement of certain pre-established performance goals and
subjective individual goals during a specified fiscal year. Performance awards granted to persons
whom the plan administrator expects will, for the year in which a deduction arises, be covered
employees (as defined below) may, if and to the extent intended by the plan administrator, be
subject to provisions that should qualify such awards as performance based compensation not
subject to the limitation on the tax deductibility by us under Section 162(m). For purposes of
Section 162(m), the term covered employee means our chief executive officer and our four highest
compensated officers as of the end of a taxable year pursuant to federal securities laws. If and
to the extent required under Section 162(m), any power or authority relating to a performance award
intended to qualify under Section 162(m) is to be exercised by a committee which will qualify under
Section 162(m), rather than our board of directors.
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Subject to the requirements of the 2011 Plan, the plan administrator will determine
performance award terms, including the required levels of performance with respect to specified
business criteria, the corresponding amounts payable upon achievement of such levels of
performance, termination and forfeiture provisions, and the form of settlement. One or more of the
following business criteria based on our consolidated financial statements, and/or those of its
affiliates, or for its business units (except with respect to the total shareholder return and
earnings per share criteria), will be used by the plan administrator in establishing performance
goals for performance awards designed to comply with the performance-based compensation exception
to Section 162(m): (1) earnings per share; (2) revenues or gross margins; (3) cash flow; (4)
operating margin; (5) return on net assets, investment, capital, or equity; (6) economic value
added; (7) direct contribution; (8) net income; pretax earnings; earnings before interest and
taxes; earnings before interest, taxes, depreciation and amortization; earnings after interest
expense and before extraordinary or special items; operating income; income before interest income
or expense, unusual items and income taxes, local, state or federal and excluding budgeted and
actual bonuses which might be paid under any of our ongoing bonus plans; (9) working capital; (10)
management of fixed costs or variable costs; (11) identification or consummation of investment
opportunities or completion of specified projects in accordance with corporate business plans,
including strategic mergers, acquisitions or divestitures; (12) total stockholder return; and (13)
debt reduction. For covered employees, the performance goals and the determination of their
achievement shall be made in accordance with Section 162(m). The plan administrator is authorized
to adjust performance conditions and other terms of awards in response to unusual or nonrecurring
events, or in response to changes in applicable laws, regulations, or accounting principles.
Other Terms of Awards
Awards may be settled in the form of cash, shares of our common stock, other awards, or other
property in the discretion of the plan administrator. Awards under the 2011 Plan are generally
granted without a requirement that the participant pay consideration in the form of cash or
property for the grant (as distinguished from the exercise), except to the extent required by law.
The plan administrator may require or permit participants to defer the settlement of all or part of
an award in accordance with such terms and conditions as the plan administrator may establish,
including payment or crediting of interest or dividend equivalents on deferred amounts, and the
crediting of earnings, gains, and losses based on deemed investment of deferred amounts in
specified investment vehicles. The plan administrator is authorized to place cash, shares of our
common stock, or other property in trusts or make other arrangements to provide for payment of our
obligations under the 2011 Plan. The plan administrator may condition any payment relating to an
award on the withholding of taxes and may provide that a portion of any shares of our common stock
or other property to be distributed will be withheld (or previously acquired shares of our common
stock or other property be surrendered by the participant) to satisfy withholding and other tax
obligations. Awards granted under the 2011 Plan generally may not be pledged or otherwise
encumbered and are not transferable except by will or by the laws of descent and distribution, or
to a designated beneficiary upon the participants death, except that the plan administrator may,
in its discretion, permit transfers of awards subject to any applicable legal restrictions. In no
event may an award be transferred to a third party in exchange for consideration.
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Acceleration of Vesting; Change in Control
The plan administrator, in its discretion, may accelerate the vesting, exercisability, lapsing
of restrictions, or expiration of deferral of any award, including if we undergo a change in
control, as defined in the 2011 Plan and all awards shall become fully vested, exercisable and all
restrictions shall lapse upon a change in control that is not approved by our board of directors.
In addition, the plan administrator may provide that the performance goals relating to any
performance-based award will be deemed to have been met upon the occurrence of any change in
control. The award agreement may provide for the vesting of an award upon a change of control,
including vesting if a participant is terminated by us or our successor without cause or
terminates for good reason as defined in the 2011 Plan.
To the extent we undergo a corporate transaction (as defined in the 2011 Plan), the 2011 Plan
provides that outstanding awards may be assumed, substituted for, or continued in accordance with
their terms. If the awards are not assumed, substituted for, or continued, to the extent
applicable, such awards will terminate immediately prior to the close of the corporate transaction.
The plan administrator may, in its discretion, either cancel the outstanding awards in exchange
for a cash payment or vest all or part of the awards contingent on the corporate transaction. With
respect to a corporate transaction which is not a change in control, awards under the 2011 Plan
must be assumed, continued, or substituted for.
Amendment and Termination
Our board of directors may amend, alter, suspend, discontinue, or terminate the 2011 Plan or
the plan administrators authority to grant awards without further stockholder approval, except
stockholder approval will be obtained for any amendment or alteration if such approval is deemed
necessary and advisable by our board of directors or any amendment for which stockholder approval
is required by law or the primary stock exchange on which our common stock trades. Unless earlier
terminated by our board of directors, the 2011 Plan will terminate on the earlier of (1) ten years
after the later of (a) the adoption by our board of directors of the 2011 Plan and (b) the approval
of an increase in the number of shares reserved under the 2011 Plan by our board of directors
(contingent upon such increase being approved by our stockholders) and (2) such time as no shares
of our common stock remain available for issuance under the 2011 Plan and no further rights or
obligations with respect to outstanding awards are outstanding under the 2011 Plan. Amendments to
the 2011 Plan or any award require the consent of the affected participant if the amendment has a
material adverse effect on the participant.
Federal Income Tax Consequences of Awards
The information set forth below is a summary only and does not purport to be complete. The
information is based upon current federal income tax rules and therefore is subject to change when
those rules change. Moreover, because the tax consequences to any recipient may depend on his or
her particular situation, each recipient should consult the recipients tax adviser regarding the
federal, state, local, and other tax consequences of the grant or exercise of an award or the
disposition of stock acquired as a result of an award. The 2011 Plan is not qualified under the
provisions of Section 401(a) of the Code and is not subject to any of the provisions of the
Employee Retirement Income Security Act of 1974.
6
Nonqualified Stock Options
Generally, there is no taxation upon the grant of a nonqualified stock option if the option is
granted with an exercise price per share equal to the fair market value of the underlying stock on
the grant date. On exercise (including upon a broker-assisted or cashless exercise), an optionee
will recognize ordinary income equal to the excess, if any, of the fair market value on the date of
exercise of the stock received over the exercise price paid. If the optionee is our employee or an
employee of one of our affiliates, that income will be subject to employment taxes and withholding
tax. The optionees tax basis in those shares will be equal to their fair market value on the date
of exercise of the option, and the optionees capital gain holding period for those shares will
begin on that date.
Subject to the requirement of reasonableness, the provisions of Section 162(m) and the
satisfaction of a tax reporting obligation, we will generally be entitled to a tax deduction equal
to the taxable ordinary income realized by the optionee.
Incentive Stock Options
The 2011 Plan provides for the grant of stock options that qualify as incentive stock
options, (which are referred to as ISOs), as defined in Section 422 of the Code. Under the Code,
an optionee generally is not subject to ordinary income tax upon the grant or exercise of an ISO.
In addition, if the optionee holds a share received on exercise of an ISO for at least two years
from the date the option was granted and at least one year from the date the option was exercised,
(which is referred to as the Required Holding Period), the difference, if any, between the amount
realized on a sale or other taxable disposition of that share and the holders tax basis in that
share will be long-term capital gain or loss.
If, however, an optionee disposes of a share acquired on exercise of an ISO before the end of
the Required Holding Period (which is referred to as a Disqualifying Disposition), the optionee
generally will recognize ordinary income in the year of the Disqualifying Disposition equal to the
excess, if any, of the fair market value of the share on the date the ISO was exercised over the
exercise price. However, if the sales proceeds are less than the fair market value of the share on
the date of exercise of the option, the amount of ordinary income recognized by the optionee will
not exceed the gain, if any, realized on the sale. If the amount realized on a Disqualifying
Disposition exceeds the fair market value of the share on the date of exercise of the option, that
excess will be short-term or long-term capital gain, depending on whether the holding period for
the share exceeds one year.
For purposes of the alternative minimum tax, the amount by which the fair market value of a
share of stock acquired on exercise of an ISO exceeds the exercise price of that option generally
will be an adjustment included in the optionees alternative minimum taxable income for the year in
which the option is exercised. If, however, there is a Disqualifying Disposition of the share in
the year in which the option is exercised, there will be no adjustment for alternative minimum tax
purposes with respect to that share. If there is a Disqualifying Disposition in a later year, no
income with respect to the Disqualifying Disposition is included in the optionees alternative
minimum taxable income for that year. In computing alternative minimum taxable income, the tax
basis of a share acquired on exercise of an ISO is increased by the amount of the
adjustment taken into account with respect to that share for alternative minimum tax purposes
in the year the option is exercised.
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We are not allowed an income tax deduction with respect to the grant or exercise of an
incentive stock option or the disposition of a share acquired on exercise of an incentive stock
option after the Required Holding Period. If there is a Disqualifying Disposition of a share,
however, we are allowed a deduction in an amount equal to the ordinary income includible in income
by the optionee, subject to Section 162(m) and provided that amount is reasonable, and either the
employee includes that amount in income or we timely satisfy our reporting requirements with
respect to that amount.
Stock Awards
Generally, the recipient of a stock award will recognize ordinary compensation income at the
time the stock is received equal to the excess, if any, of the fair market value of the stock
received over any amount paid by the recipient in exchange for the stock. Where no amount is paid
for the stock, then the full fair market value of the stock received is ordinary compensation
income to the recipient. If, however, the stock is not vested when it is received (for example, if
the employee is required to work for a period of time in order to have the right to sell the
stock), the recipient generally will not recognize income until the stock becomes vested, at which
time the recipient will recognize ordinary compensation income equal to the excess, if any, of the
fair market value of the stock on the date it becomes vested over any amount paid by the recipient
in exchange for the stock. A recipient may, however, file an election with the Internal Revenue
Service, within 30 days of his or her receipt of the stock award, to recognize ordinary
compensation income, as of the date the recipient receives the award, equal to the excess, if any,
of the fair market value of the stock on the date the award is granted over any amount paid by the
recipient in exchange for the stock. If the recipient makes an election to be taxed at grant and
the value of the stock at sale is less than the value of the stock at grant, there is no recovery
or deduction for the taxes paid at grant. If the recipient is our employee or an employee of one
of our affiliates, any income recognized will be subject to employment taxes and withholding tax.
The recipients basis for the determination of gain or loss upon the subsequent disposition of
shares acquired from stock awards will be the amount paid for such shares plus any ordinary income
recognized either when the stock is received or when the stock becomes vested.
Subject to the requirement of reasonableness, the provisions of Section 162(m) and the
satisfaction of a tax reporting obligation, we will generally be entitled to a tax deduction equal
to the taxable ordinary income realized by the recipient of the stock award.
Stock Appreciation Rights
We may grant stock appreciation rights separate from any other award, (which is referred to as
stand-alone stock appreciation rights), or in tandem with options, (which is referred to as tandem
stock appreciation rights), under the 2011 Plan.
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With respect to stand-alone stock appreciation rights, where the rights are granted with a
strike price equal to the fair market value of the underlying stock on the grant date and where the
recipient may only receive the appreciation inherent in the stock appreciation rights in shares of
our common stock, the recipient will recognize ordinary compensation income equal to the fair
market value of the stock on the day the right is exercised and the shares of our common stock
are delivered. If the recipient may receive the appreciation inherent in the stock appreciation
rights in cash and the stock appreciation right has been structured to conform to the requirements
of Section 409A of the Code, the cash will be taxable as ordinary compensation income to the
recipient at the time that the cash is received.
We have not granted and do not plan to grant any tandem stock appreciation rights, due to the
adverse tax consequences of such awards under Section 409A of the Code.
Subject to the requirement of reasonableness, the provisions of Section 162(m), and the
satisfaction of a tax reporting obligation, we will generally be entitled to a tax deduction equal
to the taxable ordinary income realized by the recipient of the stock appreciation right.
Stock Units
Generally, the recipient of a stock unit structured to conform to the requirements of Section
409A of the Code or an exception to Section 409A of the Code will not recognize any income at grant
and will recognize ordinary compensation income at the time the stock is delivered equal to the
excess, if any, of the fair market value of the shares of our common stock received over any amount
paid by the recipient in exchange for the shares of our common stock. To conform to the
requirements of Section 409A of the Code, the shares of our common stock subject to a stock unit
award may only be delivered upon one of the following events: a fixed calendar date, separation
from service, death, disability, or a change of control. If delivery occurs on another date,
unless the stock units qualify for an exception to the requirements of Section 409A of the Code, in
addition to the tax treatment described above, there will be an additional twenty percent excise
tax and interest on any taxes owed.
The recipients basis for the determination of gain or loss upon the subsequent disposition of
shares acquired from stock units will be the amount paid for such shares plus any ordinary income
recognized when the stock is delivered.
Subject to the requirement of reasonableness, the provisions of Section 162(m) and the
satisfaction of a tax reporting obligation, we will generally be entitled to a tax deduction equal
to the taxable ordinary income realized by the recipient of the stock award.
Dividend Equivalents
Generally, the recipient of a dividend equivalent award will recognize ordinary compensation
income at the time the dividend equivalent award is received equal to the fair market value of any
payments received under the dividend equivalent award. Subject to the requirement of
reasonableness, the provisions of Section 162(m) and the satisfaction of a tax reporting
obligation, we will generally be entitled to a tax deduction equal to the taxable ordinary income
realized by the recipient of the dividend equivalent.
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Section 162 Limitations
Section 162(m) denies a deduction to any publicly held corporation for compensation paid to
certain covered employees in a taxable year to the extent that compensation to such covered
employee exceeds $1 million. It is possible that compensation attributable to stock
awards, when combined with all other types of compensation received by a covered employee from
us, may cause this limitation to be exceeded in any particular year. For purposes of Section
162(m), the term covered employee means our chief executive officer and our four highest
compensated officers as of the end of a taxable year as disclosed in our SEC filings.
Certain kinds of compensation, including qualified performance-based compensation, are
disregarded for purposes of the Section 162(m) deduction limitation. In accordance with Treasury
regulations issued under Section 162(m), compensation attributable to certain stock awards will
qualify as performance-based compensation if the award is granted by a committee of our board of
directors consisting solely of outside directors and the stock award is granted (or exercisable)
only upon the achievement (as certified in writing by the committee) of an objective performance
goal established in writing by the committee while the outcome is substantially uncertain, and the
material terms of the 2011 Plan under which the award is granted is approved by stockholders. A
stock option or stock appreciation right may be considered performance-based compensation as
described in the previous sentence or by meeting the following requirements: the incentive
compensation plan contains a per-employee limitation on the number of shares for which stock
options and stock appreciation rights may be granted during a specified period, the material terms
of the plan are approved by the shareholders, and the exercise price of the option or right is no
less than the fair market value of the stock on the date of grant.
The foregoing is a summary only and does not purport to be a complete description of all of
the terms contained in the 2011 Plan, and is subject to and qualified in its entirety by reference
to the full text of the 2011 Plan, which is attached hereto as Exhibit 10.29(a) and is incorporated
herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d)
Exhibits.
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Exhibit
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Number
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Description
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10.29
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(a)
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MarineMax, Inc. 2011 Stock-Based Compensation Plan
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10.29
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(b)
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Form Stock Option Agreement for 2011 Stock-Based Compensation Plan
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10.29
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(c)
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Form Restricted Stock Unit Award Agreement for 2011 Stock-Based
Compensation Plan
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10
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Date: January 25, 2011
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MARINEMAX, INC.
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By:
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/s/ Michael H. McLamb
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Michael H. McLamb
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Executive Vice President, Chief Financial Officer,
and Secretary
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11
EXHIBIT INDEX
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Exhibit
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Number
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Description
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10.29
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(a)
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MarineMax, Inc. 2011 Stock-Based Compensation Plan.
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10.29
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(b)
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Form Stock Option Agreement for 2011 Stock-Based Compensation Plan
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10.29
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(c)
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Form Restricted Stock Unit Award Agreement for 2011 Stock-Based Compensation Plan
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12
EXHIBIT 10.29(a)
MarineMax, Inc.
2011 Stock-Based Compensation Plan
1.
Purpose
. The purpose of this Plan is to assist the Company and its Related Entities in
attracting, motivating, retaining and rewarding high-quality Employees, officers, Directors, and
Consultants by enabling such persons to acquire or increase a proprietary interest in the Company
in order to strengthen the mutuality of interests between such persons and the Companys
stockholders and providing such persons with annual and long-term performance incentives to expend
their maximum efforts in the creation of stockholder value. The Plan is intended to qualify
certain compensation awarded under the Plan for tax deductibility under Section 162(m) of the Code
(as hereafter defined) to the extent deemed appropriate by the Plan Administrator.
2.
Definitions
. For purposes of the Plan, the following terms shall be defined as set forth
below.
(a)
2007 Plan Award
means a stock award granted under the 2007 Incentive Compensation Plan.
(b)
Applicable Laws
means the requirements relating to the administration of equity
compensation plans under U.S. state corporate laws, U.S. federal and state securities laws, the
Code, the rules and regulations of any stock exchange upon which the Common Stock is listed, and
the applicable laws of any foreign country or jurisdiction where Awards are granted under the Plan.
(c)
Award
means any award granted pursuant to the terms of this Plan, including an Option,
Stock Appreciation Right, Restricted Stock, Stock Unit, Stock granted as a bonus or in lieu of
another award, Dividend Equivalent, and Other Stock-Based Award or Performance Award, together with
any other right or interest, granted to a Participant under the Plan.
(d)
Award Agreement
means the written agreement evidencing an Award granted under the Plan.
(e)
Beneficiary
means the person, persons, trust, or trusts that have been designated by a
Participant in his or her most recent written beneficiary designation filed with the Plan
Administrator to receive the benefits specified under the Plan upon such Participants death or to
which Awards or other rights are transferred if and to the extent permitted under Section 10(b)
hereof. If, upon a Participants death, there is no designated Beneficiary or surviving designated
Beneficiary, then the term Beneficiary means the person, persons, trust, or trusts entitled by will
or the laws of descent and distribution to receive such benefits.
(f)
Beneficial Owner, Beneficially Owning,
and
Beneficial Ownership
shall have the
meanings ascribed to such terms in Rule 13d-3 under the Exchange Act and any successor to such
Rule.
(g)
Board
means the Companys Board of Directors.
(h)
Cause
shall, with respect to any Participant, have the meaning specified in the Award
Agreement. In the absence of any definition in the Award Agreement, Cause shall have the
equivalent meaning or the same meaning as cause or for cause set forth in any employment,
consulting, change in control, or other agreement for the performance of services between the
Participant and the Company or a Related Entity or, in the absence of any such definition in such
agreement, such term shall mean (i) the failure by the Participant to perform his or her duties as
assigned by the Company (or a Related Entity) in a reasonable manner, (ii) any violation or breach
by the Participant of his or her employment, consulting, or other similar agreement with the
Company (or a Related Entity), if any, (iii) any violation or breach by the Participant of his or
her confidential information and invention assignment, non-competition, non-solicitation,
non-disclosure, and/or other similar agreement with the Company or a Related Entity, if any, (iv)
any act by the Participant of dishonesty or bad faith with respect to the Company (or a Related
Entity), (v) any material violation or breach by the Participant of the Companys or a Related
Entitys policy for employee conduct, if any, (vi) use of alcohol, drugs, or other similar
substances in a manner that adversely affects the Participants work performance, or (vii) the
commission by the Participant of any act, misdemeanor, or crime reflecting unfavorably upon the
Participant or the Company or any Related Entity. The good faith determination by the Plan
Administrator of whether the Participants Continuous Service was terminated by the Company for
Cause shall be final and binding for all purposes hereunder.
(i)
Change in Control
means and shall be deemed to have occurred on the earliest of the
following dates:
(i) the date on which any person (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act), obtains beneficial ownership (as defined in Rule 13d-3 of the Exchange Act) or a
pecuniary interest in fifty percent (50%) or more of the Voting Stock;
(ii) the consummation of a merger, consolidation, reorganization, or similar transaction other
than a transaction (1) (a) in which substantially all of the holders of Companys Voting Stock hold
or receive directly or indirectly fifty percent (50%) or more of the voting stock of the resulting
entity or a parent company thereof, in substantially the same proportions as their ownership of the
Company immediately prior to the transaction; or (2) in which the holders of Companys capital
stock immediately before such transaction will, immediately after such transaction, hold as a group
on a fully diluted basis the ability to elect at least a majority of the directors of the surviving
corporation (or a parent company);
(iii) there is consummated a sale, lease, exclusive license, or other disposition of all or
substantially all of the consolidated assets of the Company and its Subsidiaries, other than a
sale, lease, license, or other disposition of all or substantially all of the consolidated assets
of the Company and its Subsidiaries to an entity, fifty percent (50%) or more of the combined
voting power of the voting securities of which are owned by the stockholders of the Company in
substantially the same proportions as their ownership of the Company immediately prior to such
sale, lease, license or other disposition; or
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(iv) individuals who, on the date this Plan is adopted by the Board, are Directors (the
Incumbent Board) cease for any reason to constitute at least a majority of the Directors;
provided, however, that if the appointment or election (or nomination for election) of any new
Director was approved or recommended by a majority vote of the members of the Incumbent Board then
still in office, such new member shall, for purposes of this Plan, be considered as a member of the
Incumbent Board.
For purposes of determining whether a Change in Control has occurred, a transaction includes
all transactions in a series of related transactions, and terms used in this definition but not
defined are used as defined in the Plan. The term Change in Control shall not include a sale of
assets, merger, or other transaction effected exclusively for the purpose of changing the domicile
of the Company.
Notwithstanding the foregoing or any other provision of this Plan, the definition of Change in
Control (or any analogous term) in an individual written agreement between the Company and the
Participant shall supersede the foregoing definition with respect to Awards subject to such
agreement (it being understood, however, that if no definition of Change in Control or any
analogous term is set forth in such an individual written agreement, the foregoing definition shall
apply).
(j)
Code
means the Internal Revenue Code of 1986, as amended from time to time, including
regulations thereunder and successor provisions and regulations thereto.
(k)
Committee
means a committee designated by the Board to administer the Plan with respect
to at least a group of Employees, Directors, or Consultants.
(l)
Company
means MarineMax, Inc., a Delaware corporation.
(m)
Consultant
means any person (other than an Employee or a Director, solely with respect
to rendering services in such persons capacity as a director) who is engaged by the Company or any
Related Entity to render consulting or advisory services to the Company or such Related Entity.
(n)
Continuous Service
means uninterrupted provision of services to the Company or any
Related Entity in the capacity as either an officer, Employee, Director, or Consultant. Continuous
Service shall not be considered to be interrupted in the case of (i) any approved leave of absence,
(ii) transfers among the Company, any Related Entities, or any successor entities, in the capacity
as either an officer, Employee, Director, or Consultant or (iii) any change in status as long as
the individual remains in the service of the Company or a Related Entity in the capacity as either
an officer, Employee, Director, or Consultant (except as otherwise provided in the Award
Agreement). An approved leave of absence shall include sick leave, military leave, or any other
authorized personal leave.
(o)
Corporate Transaction
means the occurrence, in a single transaction or in a series of
related transactions, of any one or more of the following events:
(i) a sale, lease, exclusive license, or other disposition of a substantial portion of the
consolidated assets of the Company and its Subsidiaries, as determined by the Plan Administrator,
in its discretion;
(ii) a sale or other disposition of more than twenty percent (20%) of the outstanding
securities of the Company; or
(iii) a merger, consolidation, reorganization, or similar transaction, whether or not the
Company is the surviving corporation.
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(p)
Covered Employee
means an Eligible Person who is a Covered Employee as specified in
Section 7(d) of the Plan.
(q)
Director
means a member of the Board or the board of directors of any Related Entity.
(r)
Disability
means a permanent and total disability (within the meaning of Section 22(e)
of the Code), as determined by a medical doctor satisfactory to the Plan Administrator.
(s)
Dividend Equivalent
means a right, granted to a Participant under Section 6(g) hereof,
to receive cash, Shares, other Awards, or other property equal in value to dividends paid with
respect to a specified number of Shares or other periodic payments.
(t)
Effective Date
means the effective date of this Plan, which shall be the date this Plan
is adopted by the Board, subject to the approval of the stockholders of the Company.
(u)
Eligible Person
means each officer, Director, Employee, or Consultant. The foregoing
notwithstanding, only employees of the Company, any Parent, or any Subsidiary shall be Eligible
Persons for purposes of receiving Incentive Stock Options. An Employee on leave of absence may be
considered as still in the employ of the Company or a Related Entity for purposes of eligibility
for participation in the Plan.
(v)
Employee
means any person, including an officer or Director, who is an employee of the
Company or any Related Entity. The payment of a directors fee by the Company or a Related Entity
shall not be sufficient to constitute employment by the Company.
(w)
Exchange Act
means the Securities Exchange Act of 1934, as amended from time to time,
including rules thereunder and successor provisions and rules thereto.
(x)
Executive Officer
means an executive officer of the Company as defined under the
Exchange Act.
(y)
Fair Market Value
means the fair market value of Shares, Awards, or other property as
determined by the Plan Administrator, or under procedures established by the Plan Administrator.
Unless otherwise determined by the Plan Administrator, the Fair Market Value of Shares as of any
given date, after which the Shares are publicly traded on a stock
exchange or market, shall be the closing sale price per share reported on a consolidated basis
for stock listed on the principal stock exchange or market on which Shares are traded on the date
as of which such value is being determined or, if there is no sale on that date, then on the last
previous day on which a sale was reported.
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(z)
Good Reason
shall, with respect to any Participant, have the meaning specified in the
Award Agreement. In the absence of any definition in the Award Agreement, Good Reason shall have
the equivalent meaning (or the same meaning as good reason or for good reason) set forth in any
employment, consulting, change in control, or other agreement for the performance of services
between the Participant and the Company or a Related Entity or, in the absence of any such
definition in such agreement(s), such term shall mean (i) the assignment to the Participant of any
duties inconsistent in any material respect with the Participants position (including status,
offices, titles, and reporting requirements), authority, duties, or responsibilities as assigned by
the Company (or a Related Entity) or any other action by the Company (or a Related Entity) that
results in a material diminution in such position, authority, duties, or responsibilities,
excluding for this purpose an isolated, insubstantial, and inadvertent action not taken in bad
faith and which is remedied by the Company (or a Related Entity) promptly after receipt of notice
thereof given by the Participant; (ii) any failure by the Company (or a Related Entity) to comply
with its obligations to the Participant as agreed upon, other than an isolated, insubstantial, or
inadvertent failure not occurring in bad faith and which is remedied by the Company (or a Related
Entity) promptly after receipt of notice thereof given by the Participant; (iii) the Companys (or
Related Entitys) requiring the Participant to be based at any office or location more than fifty
(50) miles from the location of employment as of the date of Award, except for travel reasonably
required in the performance of the Participants responsibilities; (iv) any purported termination
by the Company (or a Related Entity) of the Participants Continuous Service otherwise than for
Cause, as defined in Section 2(h), death, or by reason of the Participants Disability as defined
in Section 2I; or (v) any reduction in the Participants base salary (unless such reduction is part
of Company-wide reduction that affects a majority of the persons of comparable level to the
Participant).
(aa)
Incentive Stock Option
means any Option intended to be designated as an incentive stock
option within the meaning of Section 422 of the Code or any successor provision thereto.
(bb)
Non-Employee Director
means a Director of the Company who is not an Employee.
(cc)
Non-Qualified Stock Option
means any Option that is not intended to be designated as an
incentive stock option within the meaning of Section 422 of the Code or any successor provision
thereto.
(dd)
Option
means a right, granted to a Participant under Section 6(b) hereof, to purchase
Shares or other Awards at a specified price during specified time periods.
(ee)
Other Stock-Based Awards
means Awards granted to a Participant pursuant to Section 6(h)
hereof.
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(ff)
Parent
means any corporation (other than the Company), whether now or hereafter
existing, in an unbroken chain of corporations ending with the Company, if each of the corporations
in the chain (other than the Company) owns stock possessing fifty percent (50%) or more of the
combined voting power of all classes of stock in one of the other corporations in the chain.
(gg)
Participant
means a person who has been granted an Award under the Plan that remains
outstanding, including a person who is no longer an Eligible Person.
(hh)
Performance Award
means a right, granted to an Eligible Person under Sections 6(h)
hereof, to receive Awards based upon performance criteria specified by the Plan Administrator.
(ii)
Performance Period
means that period established by the Plan Administrator at the time
any Performance Award is granted or at any time thereafter during which any performance goals
specified by the Plan Administrator with respect to such Award are to be measured.
(jj)
Person
has the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and
used in Sections 13(d) and 14(d) thereof, and shall include a group as defined in Section 12(d)
thereof.
(kk)
Plan
means this MarineMax, Inc. 2011 Stock-Based Compensation Plan.
(ll)
Plan Administrator
means the Board or any Committee delegated by the Board to
administer the Plan. There may be different Plan Administrators with respect to different groups
of Eligible Persons.
(mm)
Related Entity
means any Parent, Subsidiary, and any business, corporation,
partnership, limited liability company, or other entity designated by the Plan Administrator in
which the Company, a Parent, or a Subsidiary, directly or indirectly, holds a substantial ownership
interest.
(nn)
Restricted Stock
means Stock granted to a Participant under Section 6(d) hereof, that
is subject to certain restrictions, including a risk of forfeiture.
(oo)
Rule 16b-3
and
Rule 16a-
1(c)(3)
means Rule 16b-3 and Rule 16a-1(c)(3), as from time
to time in effect and applicable to the Plan and Participants, promulgated by the Securities and
Exchange Commission under Section 16 of the Exchange Act.
(pp)
Share
means a share of the Companys Common Stock, and the share of such other
securities as may be substituted (or resubstituted) for Stock pursuant to Section 10(c) hereof.
(qq)
Stock
means the Companys Common Stock, and such other securities as may be substituted
(or resubstituted) for the Companys Common Stock pursuant to Section 10(c) hereof.
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(rr)
Stock Appreciation Right
means a right granted to a Participant pursuant to Section
6(c) hereof.
(ss)
Stock Unit
means a right, granted to a Participant pursuant to Section 6(e) hereof, to
receive Shares, cash, or a combination thereof at the end of a specified period of time.
(tt)
Subsidiary
means any corporation (other than the Company), whether now or hereafter
existing, in an unbroken chain of corporations beginning with the Company, if each of the
corporations other than the last corporation in the unbroken chain owns stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock in one of the
other corporations in such chain.
(uu)
Voting Stock
means the stock of the Company with a right to vote for the election of
Directors.
3.
Administration
.
(a)
Administration by Board
. The Board shall administer the Plan unless and until the Board
delegates administration to a Committee, as provided in Section 3(c). The Board and/or
Committee(s) administering the Plan shall be the Plan Administrator.
(b)
Powers of the Plan Administrator
. The Plan Administrator shall have the following powers,
subject to, and within the limitations of, the express provisions of the Plan:
(i) Subject to Section 3(g) below, to determine from time to time those of the persons
eligible under the Plan shall be granted Awards; when and how each Award shall be granted; what
type or combination of types of Award shall be granted; the provisions of each Award granted (which
need not be identical), including the time or times when a person shall be permitted to receive
Shares or cash pursuant to an Award; and the number of Shares or amount of cash with respect to
which an Award shall be granted to each such person.
(ii) To construe and interpret the Plan and Awards granted under it and to establish, amend,
and revoke rules and regulations for its administration. The Plan Administrator, in the exercise
of this power, may correct any one or more defects, omissions, or inconsistencies in the Plan or in
any Award Agreement, in a manner and to the extent it shall deem necessary or expedient to make the
Plan fully effective.
(iii) To amend the Plan or an Award as provided in Section 10(e).
(iv) To terminate or suspend the Plan as provided in Section 10(e).
(v) To adopt such modifications, procedures, and subplans as may be necessary or desirable to
comply with provisions of the laws of foreign countries in which the Company or Related Entities
may operate to assure the viability of the benefits from Awards granted to Participants performing
services in such countries and to meet the objectives of the Plan.
7
(vi) Generally, to exercise such powers and to perform such acts as the Plan Administrator
deems necessary or appropriate to promote the best interests of the Company and that are not in
conflict with the provisions of the Plan.
(c)
Delegation to Committee
.
(i)
General
. The Board may delegate administration of the Plan to a Committee or Committees
of more members of the Board, and the term Committee shall apply to any person or persons to whom
such authority has been delegated. If administration is delegated to a Committee, the Committee
shall have, in connection with the administration of the Plan, the powers theretofore possessed by
the Board, to the extent delegated by the Board, including the power to delegate to a subcommittee
any of the administrative powers the Committee is authorized to exercise, subject, however, to such
resolutions, not inconsistent with the provisions of the Plan, as may be adopted from time to time
by the Board. The Board may abolish the Committee at any time and revest in the Board the
administration of the Plan.
(ii)
Section
162(m)
and Rule 16b-3 Compliance
. In the discretion of the Board, the Committee
may consist solely of two or more Outside Directors, in accordance with Section 162(m) of the
Code, and/or solely of two or more Non-Employee Directors, in accordance with Rule 16b-3. In
addition, the Plan Administrator may delegate to a committee of two or more members of the Board
the authority to grant Awards to Eligible Persons who are either (a) not then Covered Employees and
are not expected to be Covered Employees at the time of recognition of income resulting from such
Award, (b) not persons with respect to whom the Company wishes to comply with Section 162(m) of the
Code or (c) not then subject to Section 16 of the Exchange Act.
(d)
Effect of Plan Administrators Decision
. All determinations, interpretations, and
constructions made by the Plan Administrator shall be made in good faith and shall not be subject
to review by any person and shall be final, binding and conclusive on all persons.
(e)
Arbitration
. Any dispute or claim concerning any Award granted (or not granted) pursuant
to the Plan or any disputes or claims relating to or arising out of the Plan shall be fully,
finally, and exclusively resolved by binding and confidential arbitration conducted pursuant to the
rules of Judicial Arbitration and Mediation Services, Inc. (JAMS) in the nearest city in which
JAMS conducts business to the city in which the Participant is employed by the Company. The
Company shall pay all arbitration fees. In addition to any other relief, the arbitrator may award
to the prevailing party recovery of its attorneys fees and costs. By accepting an Award, the
Participant and the Company waive their respective rights to have any such disputes or claims tried
by a judge or jury.
(f)
Limitation of Liability
. The Board and any Committee(s), and each member thereof, who act
as the Plan Administrator, shall be entitled to, in good faith, rely or act upon any report or
other information furnished to him or her by any officer or Employee, the Companys independent
auditors, Consultants, or any other agents assisting in the administration of the Plan. Members of
the Board and any Committee(s), and any officer or Employee acting at the direction or on behalf of
the Board and any Committee(s), shall not be personally liable for
any action or determination taken or made in good faith with respect to the Plan and shall, to
the extent permitted by law, be fully indemnified and protected by the Company with respect to any
such action or determination.
8
(g)
Administration of the Plan For Non-Employee Directors
. Notwithstanding the foregoing, the
grant of all Awards to the Non-Employee Directors shall be approved by a majority of the Directors
who qualify as independent under the rules of the principal stock exchange or market on which
Shares are traded or a Committee composed solely of such independent Directors.
4.
Shares Issuable Under the Plan
.
(a)
Number of Shares Available for Issuance Under Plan
. Subject to adjustment as provided in
Section 10(c) hereof, the total number of Shares reserved and available for issuance in connection
with Awards shall be 1,000,000 Shares. In addition, any shares available for issuance under the
2007 Incentive Compensation Plan that are not subject to an outstanding award under the 2007
Incentive Compensation Plan as of the date of stockholder approval of this Plan shall become
available for issuance under this Plan, and shall no longer be available for issuance under the
2007 Incentive Compensation Plan, as applicable. Any Shares issued under the Plan may consist, in
whole or in part, of authorized and unissued shares or treasury shares.
(b)
Availability of Shares Not Issued pursuant to Awards
.
(i) If any Shares subject to an Award or to an 2007 Plan Award are forfeited, expire, or
otherwise terminate without issuance of such Shares, any Award or 2007 Plan Award is settled for
cash or otherwise does not result in the issuance of all or a portion of the Shares subject to such
Award or 2007 Plan Award, the Shares shall, to the extent of such forfeiture, expiration,
termination, cash settlement, or non-issuance, be available for Awards under the Plan, subject to
Section 4(b)(iv) below.
(ii) If any Shares issued pursuant to an Award or 2007 Plan Award are forfeited back to or
repurchased by the Company, including, but not limited to, any repurchase or forfeiture caused by
the failure to meet a contingency or condition required for the vesting of such shares, then the
Shares forfeited or repurchased shall revert to and become available for issuance under the Plan,
subject to Section 4(b)(iv) below.
(iii) In the event that any Option or other Award granted hereunder is exercised through the
withholding of Shares from the Award by the Company or withholding tax liabilities arising from
such Option or other Award are satisfied by the withholding of Shares from the Award by the
Company, then only the number of Shares issued net of the Shares withheld shall be counted as
issued for purposes of determining the maximum number of Shares available for grant under the Plan,
subject to Section 4(b)(iv) below. In the event that any 2007 Plan Award is exercised through the
withholding of Shares by the Company from the 2007 Plan Award or withholding tax liabilities
arising from such 2007 Plan Award are satisfied by the withholding of Shares from the 2007 Plan
Award by the Company, then Shares withheld shall become available for issuance under the Plan,
subject to Section 4(b)(iv) below.
9
(iv) Notwithstanding anything in this Section 4(b) to the contrary, solely for purposes of
determining whether Shares are available for the grant of Incentive Stock Options, the maximum
aggregate number of Shares that may be granted under this Plan through Incentive Stock Options
shall be determined without regard to any Shares restored pursuant to this Section 4(b) that, if
taken into account, would cause the Plan, for purposes of the grant of Incentive Stock Options, to
fail the requirement under Code Section 422 that the Plan designate a maximum aggregate number of
shares that may be issued.
(c)
Application of Limitations
. The limitation contained in this Section 4 shall apply not
only to Awards that are settled by the delivery of Shares but also to Awards relating to Shares but
settled only in cash (such as cash-only Stock Appreciation Rights). The Plan Administrator may
adopt reasonable counting procedures to ensure appropriate counting, and avoid double counting (as,
for example, in the case of tandem or substitute awards) and may make adjustments if the number of
Shares actually delivered differs from the number of shares previously counted in connection with
an Award.
5.
Eligibility; Per-Person Award Limitations
. Awards may be granted under the Plan only to
Eligible Persons.
In any one calendar year, an Eligible Person may not be granted Awards under which more than
fifty percent (50%) of the total number of Shares reserved for issuance under the Plan (whether or
not issued) could be received by the Participant, subject to adjustment as provided in Section
10(c). In addition, the maximum dollar value payable in cash to any one Participant with respect
to Performance Awards vesting based on the performance objectives of Section 7 is $5,000,000 per
calendar year.
6.
Terms of Awards
.
(a)
General
. Awards may be granted on the terms and conditions set forth in this Section 6.
In addition, the Plan Administrator may impose on any Award or the exercise thereof, at the date of
grant or thereafter (subject to Section 10(e)), such additional terms and conditions, not
inconsistent with the provisions of the Plan, as the Plan Administrator shall determine, including
terms requiring forfeiture of Awards in the event of termination of the Participants Continuous
Service and terms permitting a Participant to make elections relating to his or her Award. The
Plan Administrator shall retain full power and discretion to accelerate, waive or modify, at any
time, any term or condition of an Award that is not mandatory under the Plan.
(b)
Options
. The Plan Administrator is authorized to grant Options to any Eligible Person on
the following terms and conditions:
(i)
Stock Option Agreement
. Each grant of an Option shall be evidenced by an Award Agreement.
Such Award Agreement shall be subject to all applicable terms and conditions of the Plan and may
be subject to any other terms and conditions, which are not inconsistent with the Plan and which
the Plan Administrator deems appropriate for inclusion in the Award Agreement. The provisions of
the various Award Agreements entered into under the Plan need not be identical.
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(ii)
Number of Shares
. The Plan Administrator shall determine and each Award Agreement shall
specify the number of Shares that are subject to the Option and shall provide for the adjustment of
such number in accordance with Section 10(c) hereof. The Award Agreement shall also specify
whether the Stock Option is an Incentive Stock Option or a Non-Qualified Stock Option.
(iii)
Exercise Price
.
(A)
In General
. The Plan Administrator shall determine and each Award Agreement shall state
the price at which Shares subject to the Option may be purchased (the Exercise Price), which
shall be not less than 100% of the Fair Market Value of the Stock on the date of grant.
(B)
Ten Percent Stockholder
. If a Participant owns or is deemed to own (by reason of the
attribution rules applicable under Section 424(d) of the Code) more than 10% of the combined voting
power of all classes of stock of the Company or any Parent or Subsidiary, any Incentive Stock
Option granted to such Employee must have an exercise price per Share of at least 110% of the Fair
Market Value of a Share on the date of grant.
(iv)
Time and Method of Exercise
. The Plan Administrator shall determine the time or times at
which or the circumstances under which an Option may be exercised in whole or in part (including
based on achievement of performance goals and/or future service requirements), the time or times at
which Options shall cease to be or become exercisable following termination of Continuous Service
or upon other conditions, the methods by which the exercise price may be paid or deemed to be paid
(including, in the discretion of the Plan Administrator, a cashless exercise procedure), the form
of such payment, including, without limitation, cash, Stock, net exercise, other Awards, or awards
granted under other plans of the Company or a Related Entity, other property (including notes or
other contractual obligations of Participants to make payment on a deferred basis) or any other
form of consideration legally permissible, and the methods by or forms in which Stock will be
delivered or deemed to be delivered to Participants.
(v)
Termination of Service
. Subject to earlier termination of the Option as otherwise
provided in the Plan and unless otherwise provided by the Plan Administrator with respect to an
Option and set forth in the Award Agreement, an Option shall be exercisable after a Participants
termination of Continuous Service only during the applicable time period determined in accordance
with this Section and thereafter shall terminate and no longer be exercisable:
(A)
Death or Disability
. If the Participants Continuous Service terminates because of the
death or Disability of the Participant, the Option, to the extent unexercised and exercisable on
the date on which the Participants Continuous Service terminated, may be exercised by the
Participant (or the Participants legal representative or estate) at any time prior to the
expiration of twelve (12) months (or such other period of time as determined by the Plan
Administrator, in its discretion) after the date on which the Participants Continuous Service
terminated, but in any event only with respect to the vested portion of the
Option and no later than the date of expiration of the Options term as set forth in the Award
Agreement evidencing such Option (the Option Expiration Date).
11
(B)
Termination for Cause
. Notwithstanding any other provision of the Plan to the contrary,
if the Participants Continuous Service is terminated for Cause, the Option shall terminate and
cease to be exercisable immediately upon such termination of Continuous Service.
(C)
Other Termination of Service
. If the Participants Continuous Service terminates for any
reason, except Disability, death, or Cause, the Option, to the extent unexercised and exercisable
by the Participant on the date on which the Participants Continuous Service terminated, may be
exercised by the Participant at any time prior to the expiration of three (3) months (or such
longer period of time as determined by the Plan Administrator, in its discretion) after the date on
which the Participants Continuous Service terminated, but in any event only with respect to the
vested portion of the Option and no later than the Option Expiration Date.
(vi)
Incentive Stock Options
. The terms of any Incentive Stock Option granted under the Plan
shall comply in all respects with the provisions of Section 422 of the Code. If and to the extent
required to comply with Section 422 of the Code, Options granted as Incentive Stock Options shall
be subject to the following special terms and conditions:
(1) The Option shall not be exercisable more than ten (10) years after the date such Incentive
Stock Option is granted; provided, however, that if a Participant owns or is deemed to own (by
reason of the attribution rules of Section 424(d) of the Code) more than 10% of the combined voting
power of all classes of stock of the Company or any Parent or Subsidiary and the Incentive Stock
Option is granted to such Participant, the Incentive Stock Option shall not be exercisable (to the
extent required by the Code at the time of the grant) for no more than five (5) years from the date
of grant; and
(2) If the aggregate Fair Market Value (determined as of the date the Incentive Stock Option
is granted) of the Shares with respect to which Incentive Stock Options granted under the Plan and
all other option plans of the Company, its Parent or any Subsidiary are exercisable for the first
time by a Participant during any calendar year in excess of $100,000, then such Participants
Incentive Stock Option(s) or portions thereof that exceed such $100,000 limit shall be treated as
Non-Qualified Stock Options (in the reverse order in which they were granted, so that the last
Incentive Stock Option will be the first treated as a Non-Qualified Stock Option). This paragraph
shall only apply to the extent such limitation is applicable under the Code at the time of the
grant.
(c)
Stock Appreciation Rights
. The Plan Administrator is authorized to grant Stock
Appreciation Rights to Participants on the following terms and conditions:
(i)
Agreement
. Each grant of a Stock Appreciation Right shall be evidenced by an Award
Agreement. Such Award Agreement shall be subject to all applicable terms and conditions of the
Plan and may be subject to any other terms and conditions which are not inconsistent with the Plan
and which the Plan Administrator deems appropriate for inclusion
in the Award Agreement. The provisions of the various Award Agreements entered into under the
Plan need not be identical.
12
(ii)
Right to Payment
. A Stock Appreciation Right shall confer on the Participant to whom it
is granted a right to receive, upon exercise thereof, the excess of (A) the Fair Market Value of
one share of stock on the date of exercise over (B) the grant price of the Stock Appreciation Right
as determined by the Plan Administrator. The per Share grant price of each Stock Appreciation
Right shall not be less than the Fair Market Value of a Share on the grant date.
(iii)
Other Terms
. The Plan Administrator shall determine at the date of grant or thereafter,
the time or times at which and the circumstances under which a Stock Appreciation Right may be
exercised in whole or in part (including based on achievement of performance goals and/or future
service requirements), the time or times at which Stock Appreciation Rights shall cease to be or
become exercisable following termination of Continuous Service or upon other conditions, the form
of payment upon exercise of Shares, cash, or other property, the method of exercise, method of
settlement, form of consideration payable in settlement (either cash, Shares or other property),
method by or forms in which Stock will be delivered or deemed to be delivered to Participants,
whether or not a Stock Appreciation Right shall be in tandem or in combination with any other
Award, and any other terms and conditions of any Stock Appreciation Right. Stock Appreciation
Rights may be either freestanding or in tandem with other Awards. Notwithstanding any other
provision of the Plan, unless otherwise exempt from Section 409A of the Code or otherwise
specifically determined by the Plan Administrator, each Stock Appreciation Right shall be
structured to avoid the imposition of any excise tax under Section 409A of the Code.
(d)
Restricted Stock
. The Plan Administrator is authorized to grant Restricted Stock to any
Eligible Person on the following terms and conditions:
(i)
Grant and Restrictions
. Restricted Stock shall be subject to such restrictions on
transferability, risk of forfeiture, and other restrictions, if any, as the Plan Administrator may
impose, or as otherwise provided in this Plan. The terms of any Restricted Stock granted under the
Plan shall be set forth in a written Award Agreement that shall contain provisions determined by
the Plan Administrator and not inconsistent with the Plan. The restrictions may lapse separately
or in combination at such times, under such circumstances (including based on achievement of
performance goals and/or future service requirements), in such installments or otherwise, as the
Plan Administrator may determine at the date of grant or thereafter. Except to the extent
restricted under the terms of the Plan and any Award Agreement relating to the Restricted Stock, a
Participant granted Restricted Stock shall have all of the rights of a stockholder, including the
right to vote the Restricted Stock and the right to receive dividends thereon (subject to any
mandatory reinvestment or other requirement imposed by the Plan Administrator). During the
restricted period applicable to the Restricted Stock, subject to Section 10(b) below, the
Restricted Stock may not be sold, transferred, pledged, hypothecated, margined, or otherwise
encumbered by the Participant. Notwithstanding the foregoing, all grants of Restricted Stock shall
comply with the vesting terms of Section 8(f).
13
(ii)
Forfeiture
. Except as otherwise determined by the Plan Administrator, upon termination
of a Participants Continuous Service during the applicable restriction period, the Participants
Restricted Stock that is at that time subject to a risk of forfeiture that has not lapsed or
otherwise been satisfied shall be forfeited to or reacquired by the Company; provided that the Plan
Administrator may provide, by rule or regulation or in any Award Agreement or may determine in any
individual case, that restrictions or forfeiture conditions relating to Restricted Stock shall be
waived in whole or in part in the event of terminations resulting from specified causes, and the
Plan Administrator may in other cases waive in whole or in part the forfeiture of Restricted Stock.
Notwithstanding the foregoing, all grants of Stock Units shall comply with the vesting
acceleration terms of Sections 8(g).
(iii)
Certificates for Shares
. Restricted Stock granted under the Plan may be evidenced in
such manner as the Plan Administrator shall determine. If certificates representing Restricted
Stock are registered in the name of the Participant, the Plan Administrator may require that such
certificates bear an appropriate legend referring to the terms, conditions, and restrictions
applicable to such Restricted Stock, that the Company retain physical possession of the
certificates, that the certificates be kept with an escrow agent, and that the Participant deliver
a stock power to the Company, endorsed in blank, relating to the Restricted Stock.
(iv)
Dividends and Splits
. As a condition to the grant of an Award of Restricted Stock, the
Plan Administrator may require that any cash dividends paid on a share of Restricted Stock be
automatically reinvested in additional shares of Restricted Stock or applied to the purchase of
additional Awards under the Plan. Unless otherwise determined by the Plan Administrator, Shares
distributed in connection with a stock split or stock dividend, and other property distributed as a
dividend, shall be subject to restrictions and a risk of forfeiture to the same extent as the
Restricted Stock with respect to which such Shares or other property has been distributed.
(e)
Stock Units
. The Plan Administrator is authorized to grant Stock Units to Participants,
which are rights to receive Shares, cash, or other property, or a combination thereof at the end of
a specified time period, subject to the following terms and conditions:
(i)
Award and Restrictions
. Satisfaction of an Award of Stock Units shall occur upon
expiration of the time period specified for such Stock Units by the Plan Administrator (or, if
permitted by the Plan Administrator, as elected by the Participant). In addition, Stock Units
shall be subject to such restrictions (which may include a risk of forfeiture) as the Plan
Administrator may impose, if any, which restrictions may lapse at the expiration of the time period
or at earlier specified times (including based on achievement of performance goals and/or future
service requirements), separately or in combination, in installments or otherwise, as the Plan
Administrator may determine. The terms of an Award of Stock Units shall be set forth in a written
Award Agreement that shall contain provisions determined by the Plan Administrator and not
inconsistent with the Plan. Stock Units may be satisfied by delivery of Stock, cash equal to the
Fair Market Value of the specified number of Shares covered by the Stock Units, or a combination
thereof, as determined by the Plan Administrator at the date of grant or thereafter. Prior to
satisfaction of an Award of Stock Units, an Award of Stock Units carries no voting or dividend or
other rights associated with share ownership. Notwithstanding
the foregoing, all grants of Stock Units shall comply with the vesting terms of Sections 8(f).
Notwithstanding any other provision of the Plan, unless otherwise exempt from Section 409A of the
Code or otherwise specifically determined by the Plan Administrator, each Stock Unit shall be
structured to avoid the imposition of any excise tax under Section 409A of the Code.
14
(ii)
Forfeiture
. Except as otherwise determined by the Plan Administrator, upon termination
of a Participants Continuous Service during the applicable time period thereof to which forfeiture
conditions apply (as provided in the Award Agreement evidencing the Stock Units), the Participants
Stock Units (other than those Stock Units subject to deferral at the election of the Participant)
shall be forfeited; provided that the Plan Administrator may provide, by rule or regulation or in
any Award Agreement or may determine in any individual case, that restrictions or forfeiture
conditions relating to Stock Units shall be waived in whole or in part in the event of terminations
resulting from specified causes, and the Plan Administrator may in other cases waive in whole or in
part the forfeiture of Stock Units. Notwithstanding the foregoing, all grants of Stock Units shall
comply with the vesting acceleration terms of Sections 8(g).
(iii)
Dividend Equivalents
. Unless otherwise determined by the Plan Administrator at date of
grant, any Dividend Equivalents that are granted with respect to any Award of Stock Units shall be
either (A) paid with respect to such Stock Units at the dividend payment date in cash or in Shares
of unrestricted Stock having a Fair Market Value equal to the amount of such dividends or (B)
deferred with respect to such Stock Units and the amount or value thereof automatically deemed
reinvested in additional Stock Units, other Awards or other investment vehicles, as the Plan
Administrator shall determine or permit the Participant to elect.
(f)
Bonus Stock and Awards in Lieu of Obligations
. The Plan Administrator is authorized to
grant Shares as a bonus or to grant Shares or other Awards in lieu of Company obligations to pay
cash or deliver other property under the Plan or under other plans or compensatory arrangements,
provided that, in the case of Participants subject to Section 16 of the Exchange Act, the amount of
such grants remains within the discretion of the Plan Administrator to the extent necessary to
ensure that acquisitions of Shares or other Awards are exempt from liability under Section 16(b) of
the Exchange Act. Shares or Awards granted hereunder shall be subject to such other terms as shall
be determined by the Plan Administrator. Notwithstanding the foregoing, all grants Shares pursuant
to this Section shall comply with the vesting terms of Section 8(f) and the vesting acceleration
terms of Section 8(g).
(g)
Dividend Equivalents
. The Plan Administrator is authorized to grant Dividend Equivalents
to any Eligible Person entitling the Eligible Person to receive cash, Shares, other Awards, or
other property equal in value to dividends paid with respect to a specified number of Shares, or
other periodic payments. Dividend Equivalents may be awarded on a free-standing basis or in
connection with another Award. The terms of an Award of Dividend Equivalents shall be set forth in
a written Award Agreement that shall contain provisions determined by the Plan Administrator and
not inconsistent with the Plan. The Plan Administrator may provide that Dividend Equivalents shall
be paid or distributed when accrued or shall be deemed to have been reinvested in additional Stock,
Awards, or other investment vehicles, and subject to such restrictions on transferability and risks
of forfeiture, as the Plan Administrator may specify. Notwithstanding any other provision of the
Plan, unless otherwise
exempt from Section 409A of the Code or otherwise specifically determined by the Plan
Administrator, each Dividend Equivalent shall be structured to avoid the imposition of any excise
tax under Section 409A of the Code.
15
(h)
Performance Awards
. The Plan Administrator is authorized to grant Performance Awards to
any Eligible Person payable in cash, Shares, other property, or other Awards, on terms and
conditions established by the Plan Administrator, including Awards subject to the provisions of
Section 7, if and to the extent that the Plan Administrator shall, in its sole discretion,
determine that an Award shall be subject to those provisions. The performance criteria to be
achieved during any Performance Period and the length of the Performance Period shall be determined
by the Plan Administrator upon the grant of each Performance Award. Except as provided in this
Plan or as may be provided in an Award Agreement, Performance Awards will be distributed only after
the end of the relevant Performance Period. The performance goals to be achieved for each
Performance Period shall be conclusively determined by the Plan Administrator and may be based upon
the criteria set forth in Section 7(b), or in the case of an Award that the Plan Administrator
determines shall not be subject to Section 7 hereof, any other criteria that the Plan
Administrator, in its sole discretion, shall determine should be used for that purpose. The amount
of the Award to be distributed shall be conclusively determined by the Plan Administrator.
Performance Awards may be paid in a lump sum or in installments following the close of the
Performance Period or, in accordance with procedures established by the Plan Administrator, on a
deferred basis. Notwithstanding the foregoing, all grants of Performance Awards which would
qualify as Full Value Awards (as defined in Section 8(f)) shall comply with the vesting terms of
Section 8(f).
(i)
Other Stock-Based Awards
. The Plan Administrator is authorized, subject to limitations
under applicable law, to grant to any Eligible Person such other Awards that may be denominated or
payable in, valued in whole or in part by reference to, or otherwise based on, or related to,
Shares, as deemed by the Plan Administrator to be consistent with the purposes of the Plan,
including, without limitation, convertible or exchangeable debt securities, other rights
convertible or exchangeable into Stock, purchase rights for Stock, Awards with value and payment
contingent upon performance of the Company or any other factors designated by the Plan
Administrator, and Awards valued by reference to the book value of Stock or the value of securities
of or the performance of specified Related Entities or business units. The Plan Administrator
shall determine the terms and conditions of such Awards. The terms of any Award pursuant to this
Section shall be set forth in a written Award Agreement that shall contain provisions determined by
the Plan Administrator and not inconsistent with the Plan. Stock delivered pursuant to an Award in
the nature of a purchase right granted under this Section 6(h) shall be purchased for such
consideration (including without limitation loans from the Company or a Related Entity), paid for
at such times, by such methods, and in such forms, including, without limitation, cash, Stock,
other Awards, or other property, as the Plan Administrator shall determine. Cash awards, as an
element of or supplement to any other Award under the Plan, may also be granted pursuant to this
Section 6(h). Notwithstanding any other provision of the Plan, unless otherwise exempt from
Section 409A of the Code or otherwise specifically determined by the Plan Administrator, each such
Award shall be structured to avoid the imposition of any excise tax under Section 409A of the Code.
Notwithstanding the foregoing, all grants of Other Stock Based Award which would qualify as Full
Value Awards (as defined in
Section 8(f)) shall comply with the vesting terms of Section 8(f) and the vesting acceleration
terms of Section 8(g).
16
7.
Tax Qualified Performance Awards
.
(a)
Covered Employees
. A Committee, composed in compliance with the requirements of Section
162(m) of the Code, in its discretion, may determine at the time an Award is granted to an Eligible
Person who is, or is likely to be, as of the end of the tax year in which the Company would claim a
tax deduction in connection with such Award, a Covered Employee, that the provisions of this
Section 7 shall be applicable to such Award.
(b)
Performance Criteria
. If an Award is subject to this Section 7, then the lapsing of
restrictions thereon and the distribution of cash, Shares or other property pursuant thereto, as
applicable, shall be contingent upon achievement of one or more objective performance goals.
Performance goals shall be objective and shall otherwise meet the requirements of Section 162(m) of
the Code and regulations thereunder, including the requirement that the level or levels of
performance targeted by the Committee result in the achievement of performance goals being
substantially uncertain. One or more of the following business criteria for the Company, on a
consolidated basis, and/or for Related Entities, or for business or geographical units of the
Company and/or a Related Entity (except with respect to the total stockholder return and earnings
per share criteria), shall be used by the Committee in establishing performance goals for such
Awards: (1) earnings per share; (2) revenues or gross margins; (3) cash flow; (4) operating margin;
(5) return on net assets, investment, capital, or equity; (6) economic value added; (7) direct
contribution; (8) net income; pretax earnings; earnings before interest and taxes; earnings before
interest, taxes, depreciation, and amortization; earnings after interest expense and before
extraordinary or special items; operating income; income before interest income or expense, unusual
items, and income taxes, local, state, or federal and excluding budgeted and actual bonuses that
might be paid under any ongoing bonus plans of the Company; (9) working capital; (10) management of
fixed costs or variable costs; (11) identification or consummation of investment opportunities or
completion of specified projects in accordance with corporate business plans, including strategic
mergers, acquisitions, or divestitures; (12) total stockholder return; and (13) debt reduction.
Any of the above goals may be determined on an absolute or relative basis or as compared to the
performance of a published or special index deemed applicable by the Committee, including, but not
limited to, the Standard & Poors 500 Stock Index or a group of companies that are comparable to
the Company. The Committee shall exclude the impact of an event or occurrence which the Committee
determines should appropriately be excluded, including without limitation, (i) restructurings,
discontinued operations, extraordinary items, and other unusual or non-recurring charges, (ii) an
event either not directly related to the operations of the Company or not within the reasonable
control of the Companys management, or (iii) a change in accounting standards required by
generally accepted accounting principles.
(c)
Performance Period; Timing For Establishing Performance Goals
. Achievement of performance
goals in respect of such Performance Awards shall be measured over a Performance Period, as
specified by the Committee. Performance goals shall be established not later than ninety (90) days
after the beginning of any Performance Period
applicable to such Performance Awards, or at such other date as may be required or permitted
for performance-based compensation under Section 162(m) of the Code.
17
(d)
Adjustments
. The Committee may, in its discretion, reduce the amount of a settlement
otherwise to be made in connection with Awards subject to this Section 7, but may not exercise
discretion to increase any such amount payable to a Covered Employee in respect of an Award subject
to this Section 7. The Committee shall specify the circumstances in which such Awards shall be
paid or forfeited in the event of termination of Continuous Service by the Participant prior to the
end of a Performance Period or settlement of Awards.
(e)
Committee Certification
. Within a reasonable period of time after the performance
criteria have been satisfied (but no later than three (3) months after the satisfaction of the
performance criteria), to the extent necessary to qualify the payments as performance based
compensation under Section 162(m) of the Code, the Committee shall certify, by resolution or other
appropriate action in writing, that the performance criteria and any other material terms
previously established by the Committee or set forth in the Plan, have been satisfied.
8.
Certain Provisions Applicable to Awards or Sales
.
(a)
Stand-Alone, Additional, Tandem and Substitute Awards
. Awards granted under the Plan may,
in the discretion of the Plan Administrator, be granted either alone or in addition to, in tandem
with or in substitution or exchange for, any other Award or any award granted under another plan of
the Company, any Related Entity or any business entity to be acquired by the Company or a Related
Entity or any other right of a Participant to receive payment from the Company or any Related
Entity. Such additional, tandem, and substitute or exchange Awards may be granted at any time. If
an Award is granted in substitution or exchange for another Award or award, the Plan Administrator
shall require the surrender of such other Award or award in consideration for the grant of the new
Award. In addition, Awards may be granted in lieu of cash compensation, including in lieu of cash
amounts payable under other plans of the Company or any Related Entity.
(b)
Form and Timing of Payment Under Awards; Deferrals
. Subject to the terms of the Plan and
any applicable Award Agreement, payments to be made by the Company or a Related Entity upon the
exercise of an Option or other Award or settlement of an Award may be made in such forms as the
Plan Administrator shall determine, including, without limitation, cash, other Awards, or other
property, and may be made in a single payment or transfer, in installments, or on a deferred basis.
The settlement of any Award may be accelerated, and cash paid in lieu of Shares in connection with
such settlement, in the discretion of the Plan Administrator or upon occurrence of one or more
specified events (in addition to a Change in Control). Installment or deferred payments may be
required by the Plan Administrator (subject to Section 10(g) of the Plan) or permitted at the
election of the Participant on terms and conditions established by the Plan Administrator.
Payments may include, without limitation, provisions for the payment or crediting of a reasonable
interest rate on installment or deferred payments or the grant or crediting of Dividend Equivalents
or other amounts in respect of installment or deferred payments denominated in Shares.
18
(c)
Exemptions from
Section 16(b)
Liability
. It is the intent of the Company that this Plan
comply in all respects with applicable provisions of Rule 16b-3 or Rule 16a-1(c)(3) to the extent
necessary to ensure that neither the grant of any Awards to nor other transaction by a Participant
who is subject to Section 16 of the Exchange Act is subject to liability under Section 16(b)
thereof (except for transactions acknowledged in writing to be non-exempt by such Participant).
Accordingly, if any provision of this Plan or any Award Agreement does not comply with the
requirements of Rule 16b-3 or Rule 16a-1(c)(3) as then applicable to any such transaction, such
provision will be construed or deemed amended to the extent necessary to conform to the applicable
requirements of Rule 16b-3 or Rule 16a-1(c)(3) so that such Participant shall avoid liability under
Section 16(b).
(d)
Code Section 409A
. If and to the extent that the Plan Administrator believes that any
Awards may constitute a nonqualified deferred compensation plan under Section 409A of the Code,
the terms and conditions set forth in the Award Agreement for that Award shall be drafted in a
manner that is intended to comply with, and shall be interpreted in a manner consistent with, the
applicable requirements of Section 409A of the Code, unless otherwise agreed to in writing by the
Participant and the Company.
(e)
No Option or Stock Appreciation Right Repricing
. Other than pursuant to Section 10(c),
without approval of the Companys stockholders, the Plan Administrator shall not be permitted to
(A) lower the exercise price per Share of an Option or Stock Appreciation Right after it is
granted, (B) cancel an Option or Stock Appreciation Right when the exercise price per Share exceeds
the Fair Market Value of the underlying Shares in exchange for another Award or cash, or (C) take
any other action with respect to an Option or Stock Appreciation Right that may be treated as a
repricing.
(f)
Vesting Restrictions for Full Value Awards
. Each award of Restricted Stock, Stock Units,
Bonus Stock, a Performance Award, or Other Stock Based Award where the Participant is not required
to pay more than the par value of the Award in cash for the Shares delivered (each a Full Value
Award) shall have a minimum vesting schedule of (A) with respect to Full Value Awards that vest
over time, a three (3) year vesting schedule with a maximum of one-third (1/3rd) of the Full Value
Award vesting in any one (1) year; (B) with respect to Full Value Awards that vest based upon the
achievement of performance goals, the performance period shall be a minimum of one (1) year in
length; provided, however, that 10% of the Shares reserved under the Plan may be granted as Full
Value Awards that are not subject to the vesting requirements of the last sentence; provided,
further, that any such grants shall be approved by the Committee.
9.
Change in Control; Corporate Transaction
.
(a)
Change in Control
.
(i) The Plan Administrator may, in its discretion, accelerate the vesting, exercisability,
lapsing of restrictions, or expiration of deferral of any Award, including upon a Change in
Control. In addition, the Plan Administrator may provide in an Award Agreement that the
performance goals relating to any Award will be deemed to have been met upon the occurrence of any
Change in Control.
19
(ii) In the event of a Change in Control that the Board has not approved prior to the
consummation of such Change in Control, then all outstanding Awards shall become fully vested and
exercisable immediately prior to and contingent on the consummation of the Change in Control.
(iii) In addition to the terms of Sections 9(a)(i) and 9(a)(i) above, the effect of a change
in control, may be provided (1) in an employment, compensation, or severance agreement, if any,
between the Company or any Related Entity and the Participant, relating to the Participants
employment, compensation, or severance with or from the Company or such Related Entity or (2) in
the Award Agreement.
(b)
Corporate Transactions
. In the event of a Corporate Transaction, any surviving entity or
acquiring entity (together, the Successor Entity) may either (i) assume any or all Awards
outstanding under the Plan; (ii) continue any or all Awards outstanding under the Plan; or (iii)
substitute similar stock awards for outstanding Awards (it being understood that similar awards
include, but are not limited to, awards to acquire the same consideration paid to the stockholders
or the Company, as the case may be, pursuant to the Corporate Transaction); provided that if the
Corporate Transaction is not a Change in Control, each outstanding Award shall be either assumed,
continued, or substituted pursuant to the terms of this Section. In the event that the Successor
Entity does not assume or continue any or all such outstanding Awards or substitute similar stock
awards for such outstanding Awards, then with respect to Awards that have been not assumed,
continued, or substituted, such Awards shall terminate if not exercised (if applicable) at or prior
to such effective time (contingent upon the effectiveness of the Corporate Transaction).
The Plan Administrator, in its discretion and without the consent of any Participant, may (but
is not obligated to) either (i) accelerate the vesting of any Awards (determined on an Award by
Award basis), including permitting the lapse of any repurchase rights held by the Company (and, if
applicable, the time at which such Awards may be exercised), in full or as to some percentage of
the Award, to a date prior to the effective time of such Corporate Transaction as the Plan
Administrator shall determine (contingent upon the effectiveness of the Corporate Transaction) or
(ii) provide for a cash payment in exchange for the termination of an Award or any portion thereof
where such cash payment is equal to the Fair Market Value of the Shares that the Participant would
receive if the Award were fully vested and exercised (if applicable) as of such date (less any
applicable exercise price).
Notwithstanding any other provision in this Plan to the contrary, with respect to Restricted
Stock and any other Award granted under the Plan with respect to which the Company has any
reacquisition or repurchase rights, the reacquisition or repurchase rights for such Awards may be
assigned by the Company to the successor of the Company (or the successors parent company) in
connection with such Corporate Transaction. In the event any such rights are not continued or
assigned to the Successor Entity, then such rights shall lapse and the Award shall be fully vested
as of the effective time of the Corporate Transaction. In addition, the Plan Administrator, in its
discretion, may (but is not obligated to) provide that any reacquisition or repurchase rights held
by the Company with respect to any such Awards (determined on an Award by Award basis) shall lapse
in whole or in part (contingent upon the effectiveness of the Corporate Transaction).
20
(c)
Dissolution or Liquidation
. In the event of a dissolution or liquidation of the Company,
then all outstanding Awards shall terminate immediately prior to the completion of such dissolution
or liquidation, and Shares subject to the Companys repurchase option may be repurchased by the
Company notwithstanding the fact that the holder of such stock is still in Continuous Service.
10.
General Provisions
.
(a)
Compliance With Legal and Other Requirements
. The Company may, to the extent deemed
necessary or advisable by the Plan Administrator, postpone the issuance or delivery of Shares or
payment of other benefits under any Award until completion of such registration or qualification of
such Shares or other required action under any federal or state law, rule, or regulation, listing
or other required action with respect to any stock exchange or automated quotation system upon
which the Shares or other Company securities are listed or quoted or compliance with any other
obligation of the Company, as the Plan Administrator may consider appropriate, and may require any
Participant to make such representations, furnish such information and comply with or be subject to
such other conditions as it may consider appropriate in connection with the issuance or delivery of
Shares or payment of other benefits in compliance with applicable laws, rules, and regulations,
listing requirements or other obligations.
(b)
Limits on Transferability; Beneficiaries
.
(i)
General
. Except as provided in the Award Agreement, a Participant may not assign, sell,
transfer, or otherwise encumber or subject to any lien any Award or other right or interest granted
under this Plan, in whole or in part, other than by will or by operation of the laws of descent and
distribution, and such Awards or rights that may be exercisable shall be exercised during the
lifetime of the Participant only by the Participant or his or her guardian or legal representative.
In no event may an Award be transferred to a third party in exchange for consideration.
(ii)
Permitted Transfer of Option
. The Plan Administrator, in its sole discretion, may permit
the transfer of an Option (but not an Incentive Stock Option or any other right to purchase Shares
other than an Option) as follows: (A) by gift to a member of the Participants Immediate Family or
(B) by transfer by instrument to a trust providing that the Option is to be passed to beneficiaries
upon death of the Participant. For purposes of this Section 10(b)(ii), Immediate Family shall
mean the Participants spouse (including a former spouse subject to terms of a domestic relations
order); child, stepchild, grandchild, child-in-law; parent, stepparent, grandparent, parent-in-law;
sibling and sibling-in-law, and shall include adoptive relationships. If a determination is made
by counsel for the Company that the restrictions contained in this Section 10(b)(ii) are not
required by applicable federal or state securities laws under the circumstances, then the Plan
Administrator, in its sole discretion, may permit the transfer of Awards (other than Incentive
Stock Options and Stock Appreciation Rights in tandem therewith) to one or more Beneficiaries or
other transferees during the lifetime of the Participant, which may be exercised by such
transferees in accordance with the terms of such Award, but only if and to the extent permitted by
the Plan Administrator pursuant to the express terms of an Award Agreement (subject to any terms
and conditions which the Plan Administrator may impose thereon, and further subject to any
prohibitions and restrictions on such transfers
pursuant to Rule 16b-3). A Beneficiary, transferee or other person claiming any rights under
the Plan from or through any Participant shall be subject to all terms and conditions of the Plan
and any Award Agreement applicable to such Participant, except as otherwise determined by the Plan
Administrator, and to any additional terms and conditions deemed necessary or appropriate by the
Plan Administrator.
21
(c)
Adjustments
.
(i)
Adjustments
.
(A) In the event that any dividend paid in Stock, forward or reverse split, merger,
consolidation, combination, or other similar corporate transaction or event affects the Stock, then
the Plan Administrator shall substitute, exchange, or adjust any or all of the following in a
manner that precludes the enlargement or dilution of rights and benefits: (A) the number and kind
of Shares reserved for issuance in connection with Awards granted thereafter, (B) the number and
kind of Shares by which annual per-person Award limitations are measured under Section 5 hereof,
(C) the number and kind of Shares subject to or deliverable in respect of outstanding Awards, (D)
the exercise price, grant price, or purchase price relating to any Award and/or make provision for
payment of cash or other property in respect of any outstanding Award, and (E) any other aspect of
any Award that the Plan Administrator determines to be appropriate.
(B) In the event that a dividend or other distribution in the form of cash or other property
(but excluding a dividend paid in Stock), recapitalization, reorganization, spin-off, repurchase,
share exchange, liquidation, dissolution or other similar corporate transaction or event affects
the Stock and/or such other securities of the Company or any other issuer such that a substitution,
exchange, or adjustment is determined by the Plan Administrator to be appropriate, then the Plan
Administrator shall, in such manner as the Plan Administrator may deem equitable, substitute,
exchange, or adjust any or all of (A) the number and kind of Shares reserved for issuance in
connection with Awards granted thereafter, (B) the number and kind of Shares by which annual
per-person Award limitations are measured under Section 5 hereof, (C) the number and kind of Shares
subject to or deliverable in respect of outstanding Awards, (D) the exercise price, grant price, or
purchase price relating to any Award and/or make provision for payment of cash or other property in
respect of any outstanding Award, and (E) any other aspect of any Award that the Plan Administrator
determines to be appropriate.
(ii)
Other Adjustments
. The Plan Administrator (which shall be a Committee to the extent such
authority is required to be exercised by a Committee to comply with Code Section 162(m)) is
authorized to make adjustments in the terms and conditions of, and the criteria included in, Awards
(including Awards subject to performance goals) in recognition of unusual or nonrecurring events
(including, without limitation, acquisitions and dispositions of businesses and assets) affecting
the Company, any Related Entity, or any business unit or the financial statements of the Company or
any Related Entity, or in response to changes in applicable laws, regulations, accounting
principles, tax rates and regulations, or business conditions or in view of the Plan
Administrators assessment of the business strategy of the Company, any Related Entity, or business
unit thereof, performance of comparable
organizations, economic and business conditions, personal performance of a Participant, and
any other circumstances deemed relevant; provided that no such adjustment shall be authorized or
made if and to the extent that such authority or the making of such adjustment would cause Options,
Stock Appreciation Rights, or Performance Awards granted to Participants designated by the Plan
Administrator as Covered Employees and intended to qualify as performance-based compensation
under Code Section 162(m) and the regulations thereunder to otherwise fail to qualify as
performance-based compensation under Code Section 162(m) and regulations thereunder.
22
(d)
Taxes
. The Company and any Related Entity are authorized to withhold from any Award
granted, any payment relating to an Award under the Plan, including from a distribution of Shares
or any payroll or other payment to a Participant, amounts of withholding and other taxes due or
potentially payable in connection with any transaction involving an Award, and to take such other
action as the Plan Administrator may deem advisable to enable the Company and Participants to
satisfy obligations for the payment of withholding taxes and other tax obligations relating to any
Award. This authority shall include authority to withhold or receive Shares or other property and
to make cash payments in respect thereof in satisfaction of a Participants tax obligations, either
on a mandatory or elective basis in the discretion of the Plan Administrator.
(e)
Changes to the Plan and Awards
. The Board may amend, alter, suspend, discontinue, or
terminate the Plan or the Committees authority to grant Awards under the Plan, without the consent
of stockholders or Participants. Any amendment or alteration to the Plan shall be subject to the
approval of the Companys stockholders if such stockholder approval is deemed necessary and
advisable by the Board or if required under the rules or regulations of the stock exchange that has
the highest trading volume for the Shares for the prior calendar year. However, without the
consent of an affected Participant, no such amendment, alteration, suspension, discontinuance, or
termination of the Plan may materially and adversely affect the rights of such Participant under
any previously granted and outstanding Award. The Plan Administrator may waive any conditions or
rights under or amend, alter, suspend, discontinue, or terminate any Award theretofore granted and
any Award Agreement relating thereto, except as otherwise provided in the Plan; provided that,
without the consent of an affected Participant, no such action may materially and adversely affect
the rights of such Participant under such Award.
(f)
Limitation on Rights Conferred Under Plan
. Neither the Plan nor any action taken
hereunder shall be construed as (i) giving any Eligible Person or Participant the right to continue
as an Eligible Person or Participant or in the employ of the Company or a Related Entity; (ii)
interfering in any way with the right of the Company or a Related Entity to terminate any Eligible
Persons or Participants Continuous Service at any time, (iii) giving an Eligible Person or
Participant any claim to be granted any Award under the Plan or to be treated uniformly with other
Participants and Employees, or (iv) conferring on a Participant any of the rights of a stockholder
of the Company unless and until the Participant is duly issued or transferred Shares in accordance
with the terms of an Award.
23
(g)
Unfunded Status of Awards; Creation of Trusts
. The Plan is intended to constitute an
unfunded plan for incentive and deferred compensation. With respect to any
payments not yet made to a Participant or obligations to deliver Shares pursuant to an Award,
nothing contained in the Plan or any Award shall give any such Participant any rights that are
greater than those of a general creditor of the Company; provided that the Plan Administrator may
authorize the creation of trusts and deposit therein cash, Shares, other Awards, or other property
or make other arrangements to meet the Companys obligations under the Plan. Such trusts or other
arrangements shall be consistent with the unfunded status of the Plan unless the Plan
Administrator otherwise determines with the consent of each affected Participant. The trustee of
such trusts may be authorized to dispose of trust assets and reinvest the proceeds in alternative
investments, subject to such terms and conditions as the Plan Administrator may specify and in
accordance with applicable law.
(h)
Nonexclusivity of the Plan
. Neither the adoption of the Plan by the Board nor its
submission to the stockholders of the Company for approval shall be construed as creating any
limitations on the power of the Plan Administrator to adopt such other incentive arrangements as it
may deem desirable including incentive arrangements and awards which do not qualify under Code
Section 162(m).
(i)
Fractional Shares
. No fractional Shares shall be issued or delivered pursuant to the Plan
or any Award. The Plan Administrator shall determine whether cash, other Awards, or other property
shall be issued or paid in lieu of such fractional shares or whether such fractional shares or any
rights thereto shall be forfeited or otherwise eliminated.
(j)
Governing Law
. The validity, construction, and effect of the Plan, any rules and
regulations under the Plan, and any Award Agreement shall be determined in accordance with the laws
of the state of Delaware without giving effect to principles of conflicts of laws, and applicable
federal law.
(k)
Plan Effective Date and Stockholder Approval; Termination of Plan
. The Plan shall become
effective on the Effective Date, subject to subsequent approval within twelve (12) months of its
adoption by the Board by stockholders of the Company eligible to vote in the election of directors,
by a vote sufficient to meet the requirements of Code Sections 162(m) (if applicable) and 422, Rule
16b-3 under the Exchange Act (if applicable), applicable requirements of the principal stock
exchange or market on which Shares are traded, and other laws, regulations, and obligations of the
Company applicable to the Plan. Awards may be granted subject to stockholder approval, but may not
be exercised or otherwise settled in the event stockholder approval is not obtained. The Plan
shall terminate no later than ten (10) years from the date of the later of (x) the Effective Date
and (y) the date an increase in the number of shares reserved for issuance under the Plan is
approved by the Board (so long as such increase is also approved by the stockholders).
24
EXHIBIT 10.29(b)
MARINEMAX, INC.
2011 Stock-Based Compensation Plan
Stock Option Agreement
Unless otherwise defined herein, the terms defined in the 2011 Stock-Based Compensation Plan
shall have the same defined meanings in this Stock Option Agreement.
I. NOTICE OF STOCK OPTION GRANT
The Optionee (as designated above) has been granted an Option to purchase Common Stock of the
Company, subject to the terms and conditions of the Plan and this Option Agreement, as follows:
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Date of Grant:
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Vesting Commencement Date:
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Exercise Price per Share:
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$
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Total Number of Shares Granted:
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Total Exercise Price:
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Type of Option:
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Incentive Stock Option
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Nonstatutory Stock Option
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Expiration Date:
As provided in Section 3 of the Stock Option Plan.
Exercise Schedule
: The Option shall be exercisable to the extent vested and outstanding. The
Option may not be exercised after it has expired (as determined pursuant to Section 3 of the Stock
Option Agreement).
Vesting Schedule:
This Option shall be vested according to the following vesting schedule:
The Option shall vest as to [
] subject to Optionee continuing to
be a Service Provider on such dates, so that the Option shall be fully vested on the [
] anniversary of the Vesting Commencement Date.
II. STOCK OPTION AGREEMENT
1.
Grant of Option
. The Administrator of the Company hereby grants to the Optionee
named in the Notice of Stock Option Grant (the
Optionee
), an option (the
Option
) to purchase
the number of Shares set forth in the Notice of Stock Option Grant, at the exercise price per Share
set forth in the Notice of Stock Option Grant (the
Exercise Price
), and subject to the terms and
conditions of the Plan, which is incorporated herein by reference. Subject to Section 10(c) of the
Plan, in the event of a conflict between the terms and conditions of the Plan and this Option
Agreement, the terms and conditions of the Plan shall prevail.
If designated in the Notice of Stock Option Grant as an Incentive Stock Option (
ISO
), this
Option is intended to qualify as an Incentive Stock Option as defined in Section 422 of the Code.
Nevertheless, to the extent that the Option exceeds the $100,000 rule of Code Section 422(d), this
Option shall be treated as a Nonstatutory Stock Option (
NSO
).
2.
Exercise of Option
.
(a)
Right to Exercise
. This Option shall be exercisable during its term in accordance
with the Exercise Schedule set out in the Notice of Stock Option Grant and with the applicable
provisions of the Plan and this Option Agreement.
(b)
Method of Exercise
. This Option shall be exercisable by delivery of an exercise
notice in the form attached as
Exhibit A
(the
Exercise Notice
) which shall state the
election to exercise the Option, the number of Shares with respect to which the Option is being
exercised, and such other representations and agreements as may be required by the Company.
The Option shall be deemed exercised when the Company receives (i) written or electronic
notice of exercise (in accordance with this Option Agreement) from the Optionee (or other person
entitled to exercise the Option), (ii) full payment for the Shares with respect to which the Option
is exercised, (iii) payment of any required tax withholding; and (iv) any other documents required
by this Option Agreement or the Exercise Notice. Full payment may consist of any consideration and
method of payment permitted by this Option Agreement. Shares issued upon exercise of an Option
shall be issued in the name of the Optionee or, if requested by the Optionee and permitted under
applicable law, in the name of the Optionee and his or her spouse. Until the Shares are issued (as
evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company), no right to vote or receive dividends or any other rights as a stockholder
shall exist with respect to the Shares, notwithstanding the exercise of the Option. The Company
shall issue (or cause to be issued) such Shares promptly after the Option is exercised. No
adjustment will be made for a dividend or other right for which the record date is prior to the
date the Shares are issued, except as provided in Section 10(c) of the Plan.
Exercise of this Option in any manner shall result in a decrease in the number of Shares
thereafter available for sale under the Option, by the number of Shares as to which the Option is
exercised.
2
(c)
Legal Compliance
. No Shares shall be issued pursuant to the exercise of an Option
unless such issuance and such exercise complies with Applicable Laws. Assuming such compliance, for
income tax purposes the Shares shall be considered transferred to the Optionee on the date on which
the Option is exercised with respect to such Shares. This Option may not be exercised until such
time as the Plan has been approved by the stockholders of the Company.
(d)
Vesting Acceleration
. The Option shall vest on an accelerated basis to the extent
provided in any employment, change in control or other agreement documenting such vesting
acceleration between Optionee and the Company that would be applicable to this Option.
3.
Term
. Optionee may not exercise the Option before the commencement of its term or
after its term expires. During the term of the Option, Optionee may only exercise the Option to the
extent vested. The term of the Option commences on the Date of Grant and expires on the Expiration
Date, which is the
earliest
of the following:
(a) With respect to the unvested portion of the Option, upon termination of Optionees
Continuous Service;
(b) With respect to the vested portion of the Option, ninety (90) days after the termination
of Optionees Continuous Service for any reason other than your Disability, death or termination
for Cause;
(c) With respect to the vested portion of the Option, immediately upon the termination of
Optionees Continuous Service for Cause, as determined by the Administrator, in its sole
discretion;
(d) With respect to the vested portion of the Option, twelve (12) months after the termination
of Optionees Continuous Service due to Disability or Death;
(e) Immediately prior to the close of certain Corporate Transactions, pursuant to Section 9 of
the Plan; or
(f) The day before the tenth (10th) anniversary of the Date of Grant.
4.
Method of Payment
. Payment of the aggregate Exercise Price shall be by any of the
following, or a combination thereof, at the election of the Optionee:
(a) cash or check;
(b) subject to the Companys approval at the time of exercise, consideration received by the
Company under a formal cashless exercise program adopted by the Company in connection with the
Plan;
(c) subject to the Companys approval at the time of exercise, surrender of other Shares
which, (i) in the case of Shares acquired from the Company, either directly or indirectly, have
been owned by the Optionee for such period of time on the date of surrender that will avoid an
expense for financial accounting purposes, and (ii) have a Fair Market Value on the
date of surrender equal to the aggregate Exercise Price of the Exercised Shares. Shares from
the portion of this Option to be exercised may be used to pay the exercise price to the extent that
such use will not increase the compensation expense for financial accounting purposes related to
this Option; or
(d) any combination of the foregoing.
3
5.
Lock-Up Period
. Optionee hereby agrees that Optionee shall not offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any Common Stock (or other securities) of the Company or enter into any
swap, hedging or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of any Common Stock (or other securities) of the Company held by
Optionee (other than those included in the registration) for a period specified by the
representative of the underwriters of Common Stock (or other securities) of the Company not to
exceed one hundred eighty (180) days following the effective date of any registration statement of
the Company filed under the Securities Act.
Optionee agrees to execute and deliver such other agreements as may be reasonably requested by
the Company or the underwriter which are consistent with the foregoing or which are necessary to
give further effect thereto. In addition, if requested by the Company or the representative of the
underwriters of Common Stock (or other securities) of the Company, Optionee shall provide, within
ten (10) days of such request, such information as may be required by the Company or such
representative in connection with the completion of any public offering of the Companys securities
pursuant to a registration statement filed under the Securities Act. The obligations described in
this Section shall not apply to a registration relating solely to employee benefit plans on Form
S-1 or Form S-8 or similar forms that may be promulgated in the future, or a registration relating
solely to a Commission Rule 145 transaction on Form S-4 or similar forms that may be promulgated in
the future. The Company may impose stop-transfer instructions with respect to the shares of Common
Stock (or other securities) subject to the foregoing restriction until the end of said one hundred
eighty (180) day period. Optionee agrees that any transferee of the Option or shares acquired
pursuant to the Option shall be bound by this Section.
6.
Non-Transferability of Option
. This Option may not be transferred in any manner
otherwise than by will or by the laws of descent or distribution and may be exercised during the
lifetime of Optionee only by Optionee. The terms of the Plan and this Option Agreement shall be
binding upon the executors, administrators, heirs, successors and assigns of the Optionee. In no
event may this Option be transferred to a third party in exchange for consideration.
7.
Tax Obligations
.
(a)
Withholding Taxes
. Optionee agrees to make appropriate arrangements with the
Company (or the Parent or Subsidiary employing or retaining Optionee) for the satisfaction of all
Federal, state, local and foreign income and employment tax withholding requirements applicable to
the Option exercise. Optionee acknowledges and agrees that the
Company may refuse to honor the exercise and refuse to deliver Shares if such withholding
amounts are not delivered at the time of exercise.
4
The Company, in its sole discretion, and in compliance with any Applicable Laws, may withhold
from fully vested Shares otherwise deliverable to Optionee upon the exercise of the Option a number
of whole Shares having a Fair Market Value, as determined by the Company as of the date the
Optionee recognizes income with respect to those Shares, not in excess of the amount of minimum tax
required to be withheld by law (or such other amount as may be necessary to avoid adverse financial
accounting treatment). Any adverse consequences to Optionee arising in connection with such Stock
withholding procedure shall be the Optionees sole responsibility.
(b)
Notice of Disqualifying Disposition of ISO Shares
. If the Option granted to
Optionee herein is an ISO, and if Optionee sells or otherwise disposes of any of the Shares
acquired pursuant to the ISO on or before the later of (1) the date two years after the Date of
Grant, or (2) the date one year after the date of exercise, the Optionee shall immediately notify
the Company in writing of such disposition. Optionee agrees that Optionee may be subject to income
tax withholding by the Company on the compensation income recognized by the Optionee.
8.
Entire Agreement; Governing Law
. The Plan is incorporated herein by reference.
The Plan and this Option Agreement constitute the entire agreement of the parties with respect to
the subject matter hereof and supersede in their entirety all prior undertakings and agreements of
the Company and Optionee with respect to the subject matter hereof, and may not be modified
adversely to the Optionees interest except by means of a writing signed by the Company and
Optionee. This agreement is governed by the internal substantive laws but not the choice of law
rules of Florida.
9.
No Guarantee of Continued Service
.
Optionee acknowledges and agrees that the
vesting of shares pursuant to the vesting schedule hereof is earned only by continuing as a Service
Provider at the will of the Company (not through the act of being hired, being granted this Option
or acquiring shares hereunder). Optionee further acknowledges and agrees that this Agreement, the
transactions contemplated hereunder and the vesting schedule set forth herein do not constitute an
express or implied promise of continued engagement as a Service Provider for the vesting period,
for any period, or at all, and shall not interfere in any way with Optionees right or the
companys right to terminate Optionees relationship as a Service Provider at any time, with or
without cause.
[The remainder of this page had been intentionally left blank.]
5
Optionee acknowledges receipt of a copy of the Plan and represents that he or she is familiar
with the terms and provisions thereof, and hereby accepts this Option subject to all of the terms
and provisions thereof. Optionee has reviewed the Plan and this Option in their entirety, has had
an opportunity to obtain the advice of counsel prior to executing this Option and fully understands
all provisions of the Option. Optionee hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Administrator upon any questions arising under the Plan or this
Option. Optionee further agrees to notify the Company upon any change in the residence address
indicated below.
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OPTIONEE
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MARINEMAX, INC.
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Signature
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By
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Print Name
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Title
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Residence Address
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[Signature Page of Stock Option Agreement]
6
EXHIBIT A
MARINEMAX, INC.
2011 STOCK-BASED COMPENSATION PLAN
EXERCISE NOTICE
MarineMax, Inc.
18167 US Highway 19 North, Suite 300
Clearwater, FL 33764
Attention:
1.
Exercise of Option
. Effective as of today,
,
, the
undersigned (
Optionee
) hereby elects to exercise
Optionees option to purchase
_____ shares of
the Common Stock (the
Shares
) of MarineMax, Inc. (the
Company
) under and pursuant to the 2011
Stock-Based Compensation Plan (the
Plan
) and the Stock Option Agreement dated
,
(the
Option Agreement
).
2.
Delivery of Payment and Required Documents
. Optionee herewith delivers to the
Company the full purchase price of the Shares, as set forth in the Option Agreement, and any and
all withholding taxes due in connection with the exercise of the Option. In addition, Optionee
delivers any other documents required by the Company.
3.
Representations of Optionee
. Optionee acknowledges that Optionee has received,
read and understood the Plan and the Option Agreement and agrees to abide by and be bound by their
terms and conditions.
4.
Rights as Stockholder
. Until the issuance of the Shares (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer agent of the
Company), no right to vote or receive dividends or any other rights as a stockholder shall exist
with respect to the Optioned Stock, notwithstanding the exercise of the Option. The Shares shall
be issued to the Optionee as soon as practicable after the Option is exercised in accordance with
the Option Agreement. No adjustment shall be made for a dividend or other right for which the
record date is prior to the date of issuance except as provided in Section 10(c) of the Plan.
5.
Tax Consultation
. Optionee understands that Optionee may suffer adverse tax
consequences as a result of Optionees purchase or disposition of the Shares. Optionee represents
that Optionee has consulted with any tax consultants Optionee deems advisable in connection with
the purchase or disposition of the Shares and that Optionee is not relying on the Company for any
tax advice.
A-1
6.
Restrictive Legends and Stop-Transfer Orders
.
(a)
Legends
.
Optionee
understands and agrees that the Company shall cause the
legends set forth below or legends substantially equivalent thereto, to be placed upon any
certificate(s) evidencing ownership of the Shares together with any other legends that may be
required by the Company or by state or federal securities laws:
[THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER FOR A
PERIOD NOT TO EXCEED 180 DAYS FOLLOWING THE EFFECTIVE DATE OF THE UNDERWRITTEN PUBLIC OFFERING OF
THE COMPANYS SECURITIES AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF BY THE HOLDER WITHOUT THE
CONSENT OF THE COMPANY OR THE MANAGING UNDERWRITER.]
(b)
Stop-Transfer Notices
. Optionee agrees that, in order to ensure compliance with
the restrictions referred to herein, the Company may issue appropriate stop transfer instructions
to its transfer agent, if any, and that, if
the
Company transfers its own securities, it
may make appropriate notations to the same effect in its own records.
(c)
Refusal to Transfer
. The Company shall not be required (i) to transfer on its
books any Shares that have been sold or otherwise transferred in violation of any of the provisions
of this Exercise Notice or (ii) to treat as owner of such Shares or to accord the right to vote or
pay dividends to any purchaser or other transferee to whom such Shares shall have been so
transferred.
7.
Successors and Assigns
. The Company may assign any of its rights under this
Exercise Notice to single or multiple assignees, and this Exercise Notice shall inure to the
benefit of the successors and assigns of the Company. Subject to the restrictions on transfer
herein set forth, this Exercise Notice shall be binding upon Optionee and his or her heirs,
executors, administrators, successors and assigns.
8.
Interpretation
. Any dispute regarding the interpretation of this Exercise Notice
shall be submitted by Optionee or by the Company forthwith to the Administrator which shall review
such dispute at its next regular meeting. The resolution of such a dispute by the Administrator
shall be final and binding on all parties.
9.
Governing Law; Severability
. This Exercise Notice is governed by the internal
substantive laws but not the choice of law rules, of Florida. In the event that any provision
hereof becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Option Agreement will continue in full force and effect.
A-2
10.
Entire Agreement
. The Plan and Option
Agreement are incorporated herein by reference. This
Exercise Notice, the Plan, the Option Agreement and the
Investment Representation Statement constitute the entire
agreement of the parties with respect to the subject
matter hereof and supersede in their entirety all prior
undertakings and agreements of the Company and Optionee
with respect to the subject matter hereof, and may not be
modified adversely to the Optionees interest except by
means of a writing signed by the Company and
Optionee.
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OPTIONEE
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MARINEMAX, INC.
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Signature
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[Signature Page of Stock Option Exercise Notice]
A-3
EXHIBIT 10.29(c)
MARINEMAX, INC.
2011 Stock-Based Compensation Plan
Restricted Stock Unit Grant Notice
MarineMax, Inc. (the Company), pursuant to its 2011 Stock-Based Compensation Plan (the Plan),
hereby grants to Participant a right to receive the number of shares of the Companys Common Stock
set forth below on the terms and conditions of this Restricted Stock Unit Grant Notice (the Grant
Notice), the Plan and the Restricted Stock Unit Award Agreement (the Agreement). The Restricted
Stock Units granted in this Grant Notice are subject to all of the terms and conditions as set
forth herein and in the Agreement, the Plan and, the applicable provisions of any employment
agreement between the Participant and the Company, if any.
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Participant:
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Date of Grant:
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Vesting Commencement Date:
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Number of Restricted Stock Units:
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Expiration Date:
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Subject to expiration as provided in
Section 3(b) of the Agreement.
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Vesting Schedule:
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[
] of the Restricted Stock Units subject to this
award vest on the [
] anniversaries of the Vesting Commencement Date;
subject to Participants Continuous Service on such vesting date(s).
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Delivery Schedule:
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Subject to Section 4 of the Agreement, the Shares to be
delivered in satisfaction of the vested Restricted Stock Units (pursuant to
Section 4(a) of the Agreement) shall be delivered within five (5) months of the
respective vesting date.
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Additional Terms/Acknowledgements:
The undersigned Participant acknowledges receipt of, and
understands and agrees to, this Grant Notice, the Agreement and the Plan. Participant further
acknowledges that as of the Date of Grant, this restricted Grant Notice, the Agreement, the Plan
and any applicable provisions of any employment agreement between the Participant and the Company,
if any, set forth the entire understanding between Participant and the Company regarding the
acquisition of Common Stock in the Company and supersede all prior oral and written agreements on
that subject with the exception of (i) options and other awards previously granted and delivered to
Participant under the Plan, and (ii) the following agreements only:
IN WITNESS WHEREOF, the parties have executed this Grant Notice on the day and year first
indicated below.
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MarineMax, Inc.
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Participant:
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By:
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Signature
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Name:
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Date:
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Title:
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Date:
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Attachments:
Restricted Stock Unit Award Agreement and 2011 Stock-Based Compensation Plan.
[Signature Page of Restricted Stock Unit Grant Notice.]
2
MARINEMAX, INC.
2011 Stock-Based Compensation Plan
Restricted Stock Unit Award Agreement
MarineMax, Inc. (the Company) wishes to grant to the person (the Participant) named in the
Restricted Stock Unit Award Grant Notice (the Grant Notice) a restricted stock unit award (the
Award) pursuant to the provisions of the Companys 2011 Stock-Based Compensation Plan (the
Plan). The Award will entitle Participant to shares of Stock from the Company, if Participant
meets the vesting requirements described herein. Therefore, pursuant to the terms of the attached
Grant Notice and this Restricted Stock Unit Award Agreement (the Agreement), the Company grants
Participants the number of restricted stock units listed in the Grant Notice (the Restricted Stock
Units).
The details of the award are as follows:
1.
Grant Pursuant to Plan
. This Award is granted pursuant to the Plan, which is incorporated
herein for all purposes. The Participant hereby acknowledges receipt of a copy of the Plan and
agrees to be bound by all of the terms and conditions of this Agreement and of the Plan. All
capitalized terms in this Agreement shall have the meaning assigned to them in this Agreement, or,
if such term is not defined in this Agreement, such term shall have the meaning assigned to it
under the Plan.
2.
Restricted Stock Unit Award
. The Company hereby grants to the Participant the Restricted
Stock Units listed in the Grant Notice as of the grant date specified in the Grant Notice (the
Grant Date). Such number of Restricted Stock Units may be adjusted from time to time pursuant to
Section 10(c) of the Plan.
3.
Vesting and Forfeiture of Restricted Stock Units
.
(a)
Vesting
. The Participant shall become vested in the Restricted Stock Units in accordance
with the vesting schedule in the Grant Notice; subject to vesting acceleration as provided in
Section 3(c) below.
(b)
Forfeiture
. The Participant shall forfeit any unvested Restricted Stock Units, if any, in
the event that the Participants Continuous Service is terminated for any reason, except (i) as
provided in the Participants employment agreement or other agreement with the Company, if any and
(ii) as otherwise determined by the Plan Administrator in its sole discretion, which determination
need not be uniform as to all Participants.
(c)
Acceleration of Vesting
. The Restricted Stock Units shall vest on an accelerated basis if
vesting acceleration is provided pursuant to any employment or other agreement between the
Participant and the Company.
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4.
Settlement of Restricted Stock Unit Award
.
(a)
Settlement of
Restricted
Stock Units for Stock
. The Company shall deliver to the
Participant one share of Stock for each vested Restricted Stock Unit subject of this
Award on the appropriate Delivery Date (as defined in Section 4(b)). The Company shall have
no obligation to settle this Award for cash.
(b)
Delivery of Stock
. Subject to Sections 4(c), 4(d), 4(e) and 4(f) below, Shares shall be
delivered on the delivery date(s) (each a Delivery Date) specified in the Grant Notice. Once a
Share is delivered with respect to a vested Restricted Stock Unit, such vested Restricted Stock
Unit shall terminate and the Company shall have no further obligation to deliver Shares or any
other property for such vested Restricted Stock Unit.
(c)
Deferral of Delivery
. Notwithstanding the foregoing, the Participant may elect, in a
writing received by the Plan Administrator at least twelve (12) months prior to a Delivery Date, to
defer the delivery of the Shares for the respective Restricted Stock Units until a later date
(which date must be at least five (5) years after the original Delivery Date).
(d)
Deferral Due to Section 162(m)
. To the extent that the Company reasonably anticipates
that the Shares to be delivered would not be deductible under Section 162(m) of the Code, the
delivery date of such Shares shall be delayed until the earlier of (i) the first tax year of the
Company in which the tax deduction for such Shares is permitted under Section 162(m) and (ii) the
Participants separation from service (as such term is defined under Section 409A of the Code any
temporary or final Treasury Regulations and Internal Revenue Service guidance thereunder). To the
extent that a portion of the Shares that are deliverable may be deducted for tax purposes under
Section 162(m), then that portion of the Shares shall be delivered and the remaining Shares that
are deliverable shall continue to be delayed pursuant to this Section.
(e)
Acceleration of Delivery upon a Change of Control
. In the event of a Change in Control,
the full amount of the Common Stock corresponding to the Participants vested Restricted Stock
Units shall be distributed to the Participant as soon as administratively practicable on or after
the Change in Control.
(f)
Delay in Payment under Section 409A
. To the extent necessary to comply with Section
409A(a)(2)(B)(i) of the Code, the delivery of the Shares shall be delayed for six (6) months after
a separation from service (as defined in Section 409A, any temporary or final Treasury
Regulations and Internal Revenue Service guidance thereunder). Any Shares or other amounts that
would have been delivered within six (6) months of a separation from service but for the effect of
this Section, shall be delivered promptly after the six (6) month delay, but, in any event, no
later than five (5) business days after the six (6) month delay.
5.
No Rights as Shareholder until Delivery
. The Participant shall not have any rights,
benefits or entitlements with respect to any Common Stock subject to this Agreement unless and
until the
Common
Stock has been delivered to the Participant. On or after delivery of the Common
Stock, the Participant shall have, with respect to the Common Stock delivered, all of the rights of
an equity interest holder of the Company, including the right to vote the Common Stock and the
right to receive all dividends, if any, as may be declared on the Stock from time to time.
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6.
Tax Provisions
.
(a)
Tax Consequences
. Participant has reviewed with Participants own tax advisors the
federal, state, local and foreign tax consequences of this investment and the transactions
contemplated by this Agreement. Participant is relying solely on such advisors and not on any
statements or representations of the Company or any of its agents. Participant understands that
Participant (and not the Company) shall be responsible for any tax liability that may arise as a
result of the transactions contemplated by this Agreement.
(b)
Withholding Obligations
. At the time the Award is granted, or at any time thereafter as
requested by the Company or any Related Entity that employs Participant, Participant hereby
authorizes withholding from payroll and any other amounts payable to Participant, including the
Shares deliverable pursuant to this Award, and otherwise agrees to make adequate provision for, any
sums required to satisfy the minimum federal, state, local and foreign tax withholding obligations
of the Company or any Related Entity that employs Participant, if any, which arise in connection
with the Award.
The Company, in its sole discretion, and in compliance with any applicable legal conditions or
restrictions, may withhold from fully vested Shares otherwise deliverable to Participant pursuant
to the Award a number of whole Shares having a Fair Market Value, as determined by the Company as
of the date of the Participant recognizes income with respect to those Shares, not in excess of the
minimum amount of tax required to be withheld by law (or such other amount that would avoid adverse
financial accounting treatment). Any adverse consequences to Participant arising in connection with
such Share withholding procedure shall be the Participants sole responsibility.
In addition, the Company, in its sole discretion, may establish a procedure whereby the
Participant may make an irrevocable election to direct a broker (determined by the Company) to sell
sufficient Shares from the Award to cover the tax withholding obligations of the Company or any
Related Entity that employs Participant and deliver such proceeds to the Company or any Related
Entity that employs Participant.
Unless the tax withholding obligations of the Company or any Related Entity that employs
Participant are satisfied, the Company shall have no obligation to issue a certificate for any
Shares deliverable under this Award.
(c)
Section 409A Amendments
. The Company agrees to cooperate with Participant to amend this
Agreement to the extent either the Company or Participant deems necessary to avoid imposition of
any additional tax or income recognition prior to actual payment to Participant under Section 409A
of the Code and any temporary or final Treasury Regulations and Internal Revenue Service guidance
thereunder, but only the extent such amendment would not have an adverse effect on the Company and
would not provide Participant with any additional rights, in each case as determined by the
Company, in its sole discretion.
8.
Consideration
. With respect to the value of the Shares to be delivered pursuant to the
Award, such Shares
are
granted in consideration for the services Participant shall provide to the
Company during the vesting period.
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9.
Transferability
. The Restricted Stock Units granted under this Agreement are not
transferable
otherwise
than by will or under the applicable laws of descend and distribution. In
addition, the Restricted Stock Units shall not be assigned, negotiated, pledged or hypothecated in
any way (whether by operation of law or otherwise), and the Restricted Stock Units shall not be
subject to execution, attachment or similar process. In no event may the Restricted Stock Units be
transferred to a third party in exchange for consideration.
10.
General Provisions
.
(a)
Employment at Will
. Nothing in this Agreement or in the Plan shall confer upon
Participant any right to continue in the service of the Company or its Related Entities for any
period of specific duration or interfere with or otherwise restrict in any way the rights of the
Company or of Participant, which rights are hereby expressly reserved by each, to terminate
Participants service at any time for any reason, with or without cause.
(b)
Notices
. Any notice required to be given under this Agreement shall be in writing and
shall be deemed effective upon personal delivery or upon deposit in the U.S. mail, registered or
certified, postage prepaid and properly addressed to the party entitled to such notice at the
address indicated below such partys signature line on this Agreement or at such other address as
such party may designate by ten (10) days advance written notice under this paragraph to all other
parties to this Agreement.
(c)
No Limit on Other Compensation Arrangements
. Nothing contained in this Agreement shall
preclude the Company from adopting or continuing in effect other or additional compensation
arrangements, and those arrangements may be either generally applicable or applicable only in
specific cases.
(d)
Severability
. If any provision of this Agreement is or becomes or is deemed to be
invalid, illegal, or unenforceable in any jurisdiction or would disqualify this Agreement or the
Award under any applicable law, that provision shall be construed or deemed amended to conform to
applicable law (or if that provision cannot be so construed or deemed amended without materially
altering the purpose; or intent of this Agreement and the Award, that provision shall be stricken
as to that jurisdiction and the remainder of this Agreement and the Award shall remain in full
force and effect).
(e)
No Trust or Fund Created
. Neither this Agreement nor the grant of the Award shall create
or be construed to create a trust or separate; fund of any kind or a fiduciary relationship between
the Company and the Participant or any other person. The Restricted Stock Units subject to this
Agreement represent only the Companys unfunded and unsecured promise to issue Stock to the
Participant in the future. To the extent that the Participant or any other person acquires a right
to receive payments from the Company pursuant to this Agreement, that right shall be no greater
than the right of any unsecured general creditor of the Company.
(f)
Cancellation of Award
. If any Restricted Stock Units subject to this Agreement are
forfeited, then from and after such time, the Participant and, if applicable, the person from whom
such Restricted Stock Units are forfeited shall no longer have any rights to
such Restricted Stock Units or the corresponding shares of Stock. Such Restricted Stock Units
shall be deemed forfeited in accordance with the applicable provisions hereof.
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(g)
Participant Undertaking
. Participant hereby agrees to take whatever additional action and
execute whatever additional documents the Company may deem necessary or advisable in order to carry
out or effect one or more of the obligations or restrictions imposed on either Participant or the
shares of Stock deliverable pursuant to the provisions of this Agreement.
(h)
Amendment, Modification, and Entire Agreement
. No provision of this Agreement may be
modified, waived or discharged unless that waiver, modification or discharge is agreed to in
writing and signed by the Participant and an officer of the Company, other than the Participant,
designated by the Plan Administrator. The Participant and the Company acknowledge that as of the
Grant Date, this Agreement, the Plan and any applicable provisions of the Participants employment
agreement with the Company, if any, set forth the entire understanding between the Participant and
the Company regarding the acquisition of Common Stock pursuant to this Award and supersede all
prior oral and written agreements on that subject with the exception of awards from the Company
previously granted and delivered to the Participant. This Agreement is made pursuant to the
provisions of the Plan and shall in all respects be construed in conformity with the terms of the
Plan. In the event of a conflict between the Plan and this Agreement, the terms of the Plan shall
govern. In the event of a conflict among any of an employment agreement, any Grant Notice and this
Agreement or the Plan, the terms of such employment agreement shall govern. No agreements or
representations, oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this Agreement.
(i)
Governing Law
. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Florida without regard to the conflict-of-laws rules thereof or of any other
jurisdiction.
(j)
Interpretation
. The Participant accepts this Award subject to all the terms and
provisions of this Agreement and the terms and conditions of the Plan. The undersigned Participant
hereby accepts as binding, conclusive and final all decisions or interpretations of the Plan
Administrator upon any questions arising under this Agreement.
(k)
Successors and Assigns
. The provisions of this Agreement shall inure to the benefit of,
and be binding upon, the Company and its successors and assigns and upon Participant, Participants
assigns and the legal representatives, heirs and legatees of Participants estate, whether or not
any such person shall have become a party to this Agreement and have agreed in writing to join
herein and be bound by the terms hereof. The Company may assign its rights and obligations under
this Agreement, including, but not limited to, the forfeiture provision of Section 3(b) to any
person or entity selected by the Plan Administrator.
(l)
Counterparts
. This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the same instrument.
(m)
Headings
. Headings are given to the Paragraphs and Subparagraphs of this Agreement solely
as a convenience to facilitate reference. The headings shall not be deemed in any way material or
relevant to the construction or interpretation of this Agreement or any provision thereof.
11.
Representations
. Participant acknowledges and agrees that Participant has reviewed the
Agreement, the Plan and the Grant Notice in their entirety, has had an opportunity to obtain the
advice of counsel prior to executing and accepting the Award and fully understands all provisions
of the Award.
[Remainder of Page Intentionally Left Blank]
5
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first
indicated above.
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MARINEMAX, INC.
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By:
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Its:
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PARTICIPANT
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Signature:
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Print Name:
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[Signature Page of Restricted Stock Unit Agreement.]
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